Ban on police qualified immunity advances out of committee

An important bill that eliminates qualified immunity for police and increases liability for cities was amended and moved out of its policy committee ahead of upcoming committee cutoffs.

Readers likely remember HB 1025, which we wrote about last month. The bill ends qualified immunity for police and creates a private cause of action against police officers and their employers for injuries caused under color of law, but in violation of state law or the constitution. Ending qualified immunity for police greatly exposes cities to additional liability. Washington is already an outlier with one of the most plaintiff-friendly governmental liability systems in the United States.

After a long wait, the bill was voted out of the House Civil Rights & Judiciary Committee on February 10 with several amendments. Some of those amendments include:

• Limiting the cause of action against police and their employers to conduct that is unlawful under the state constitution, immigration enforcement statutes, and use of force statutes.
• Making the bill apply to state police agencies in addition to local governments.
• Modifying employer liability for an officer's compliance with a practice or procedures by requiring the practice or procedure to have been established by the employer or approved/condoned by superiors.
• Limiting the employer defense of using an Attorney General-drafted model policy to only those model policies drafted at the specific request of the Legislature.
• Limiting the employer defense of inability to use reasonable care in retention or discipline of an officer to circumstances where disciplinary action was taken, and the action was appealed and reduced or overturned by an arbitrator or court.
• Removing the restriction on qualified immunity when the state of the law was such that the officer or employer couldn’t have reasonably known whether the officer’s conduct was lawful. It retains the ban of qualified immunity based on a person’s rights, privileges, or immunities not being “clearly established.”
• Adding additional notice and reporting requirements when qualifying training or model policy defenses are asserted.

The bill now heads to the House Appropriations Committee due to the fiscal impacts it will have on state and local governments. Unfortunately, even with the amendments, AWC continues to oppose HB 1025 because of the impact increasing city liability exposure will have, including driving up litigation and settlement costs, increased claims (including meritless claims), increasing exposure to attorney fees, and increasing the cost of obtaining city liability insurance costs (potentially to the point of being cost-prohibitive) or driving insurers out of the Washington city liability insurance market altogether.