Victims of police violence deserve a fair chance at justice. This bill will provide that.

Friday, March 3, 2023

Throughout the country, countless victims of police violence are dealt a one-two punch. First, they’re burdened with the pain and trauma associated with agents of the state violating their rights. Then, they face the harsh reality that there are few viable options for legal recourse, and instead, numerous obstacles to justice.

Washington victims and their families can sue in state court when officers violate their rights under the state constitution. But even if a violation did occur, these families can’t recover damages (the costs of the harm) and attorney's fees, leaving them with significant financial burden just for seeking justice. Victims can also turn to federal court for relief, but those courts often block victims’ cases by applying qualified immunity, a legal doctrine that protects officers who violate a person’s constitutional rights.  

In the meantime, families of people killed by police violence are left to bear the financial burden in addition to the trauma. They have to cover hospital bills, funeral expenses, as well as the costs of raising the children left behind.

Washington state lawmakers have an opportunity this legislative session to level the playing field and give victims of police violence a fair chance in court. House Bill 1025, the Access to Fairness Act, would provide real legal options for victims of police violence. It will allow victims and their families to sue for violations of the state constitution, the Keep Washington Working Act, and the police use of force law, in state court, and to recover fees and damages if successful.

Most notably, Access to Fairness prevents Washington courts from applying the legal doctrine of qualified immunity for these state-law civil rights violations.

The bill follows the lead of several states, including Colorado, New Mexico, and California, where creating a private right of action has proven successful. It is a commonsense approach that places the responsibility of addressing misconduct on the entity responsible for the misconduct, instead of burdening victims. Individual police officers are indemnified under the bill, and therefore will not have to pay anything. This means local governments and departments — who employ, train, and supervise officers, and who are in the best position to employ officers who uphold the constitution — would have to compensate victims if an officer violated their rights. It puts responsibility where it belongs.

Washington needs HB 1025 because it sends the needed message that no person is above the law. Law enforcement should be held accountable if they violate someone’s constitutional rights, and the victims of police violence shouldn’t also face financial hardships when those rights are violated.

Opponents say removing qualified immunity would lead to a wave of frivolous lawsuits, but that is a misunderstanding of how the doctrine works and is a misguided understanding of just how harmful qualified immunity is.

Qualified immunity only applies if a victim proves their rights were violated — so, by definition, these cases are meritorious, not frivolous. However, qualified immunity overrides these successful cases, unless there is a "clearly established law” that deals with specific details of the case.

The doctrine produces absurd results. Qualified immunity was used to dismiss a case where officers tazed a woman in Seattle in her belly when she was seven months pregnant, causing her to go into premature labor,[1] and another case where officers stole $225,000 while executing a search warrant, because there weren’t prior court cases saying that this kind of misconduct was unlawful.[2] It’s as if a doctor who botched a surgery couldn’t be held accountable because no other surgeon had botched surgery in quite the same way.

HB 1025 would allow Washingtonians whose rights have been violated under the Washington constitution to bring cases without this unjust waiver.  What good do we do for people when we prevent them from seeking justice in a case where obvious harm was done? Qualified immunity allows officers to act with impunity, no matter how egregious or harmful their behavior. It is a tacit nod to officers that they can get away with breaking laws a regular civilian would be held accountable for. It runs counter to the goals of a functioning democracy to allow people to play by a different set of rules just because of their occupation.

HB 1025 gives Washington an opportunity to put victims and their families first – and to prioritize fairness and justice. Lawmakers should pass the Access to Fairness Act and show that no person is above the law — especially not those who are empowered to enforce it.
[1] Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011).
[2] Jessop v. Fresno, 936 F.3d 937 (9th Cir. 2019).