End qualified immunity in Washington

Yes, the bill prohibits law enforcement officers from claiming immunity or using a defense based on unclear establishment of and knowledge of plaintiff’s rights at the time of the act and/or lawfulness of the act. Section 3 of the bill states, "**It is not an immunity or defense to an action brought under this chapter that: (a) The rights, privileges, or immunities sued upon were not clearly established at the time of the act, omission, or decision by the peace officer or employer; or (b) At such time, that the state of the law was such that the peace officer or employer could not reasonably have been expected to know whether such act, omission, or decision was lawful.**"

No, the bill does not meet the standard. Section 3 of the bill states, "It is not an immunity or defense to an action brought under this chapter that: (a) The rights, privileges, or immunities sued upon were not clearly established at the time of the act, omission, or decision **by the peace officer** or employer; or (b) At such time, that the state of the law was such that the peace officer or employer could not reasonably have been expected to know whether such act, omission, or decision was lawful."

The bill partially meets the standard. The bill only provides cause of action for people injured in person or property for a listed violation of rights, some of which are more expansive than constitutional rights, but does not explicitly include all violations of rights. Section 3 of the bill states, “...any person injured in person or property by a peace officer acting under color of authority has a cause of action against the peace officer if the peace officer: (a) **Engaged in conduct that under common law constitutes an assault, battery, intentional infliction of emotional distress, false imprisonment, false arrest, malicious prosecution, intentional trespass, or conversion; or (b) Executed a detention, traffic stop, search, seizure, or entry into a home that is unlawful under the state Constitution; or (c) Engaged in conduct that violated the duty of reasonable care under chapter .** . ., **Laws of 2021 (House Bill No. 1310); or (d) Violated a provision of RCW 10.93.160.7**”

Yes, the bill does not address caps and current Washington State statutes do not place caps on civil damage suits.

The bill partially meets the standard. The bill only holds officers civilly liable when failing to intervene for witnessing a listed violation of rights, some of which are more expansive than constitutional rights, but does not explicitly expand to the scope of all violations of rights. There is no reporting requirement for failure to intervene. Section 3 of the bill states, "Any person injured in person or property by a peace officer acting under color of authority **has a cause of action against the peace officer, and against any other peace officer who had the power through reasonable diligence to prevent or aid in preventing the injury from occurring and failed to do so,** . . ."

Yes, the bill guarantees that victims are compensated the full amount awarded if the conduct was within the scope of the peace officer’s employment. Section 3 of the bill states, "In an action against a peace officer under subsection (1) of this section, **the plaintiff may also name the officer's employer as a defendant.** **The employer is vicariously liable if the unlawful conduct causing the injury was within the scope of the peace officer's employment.** (3) A peace officer has a defense against an action brought under subsection (1) of this section if, when the injury occurred, the officer substantially complied with a regulation, practice, procedure, policy, or training that was established by the employer or approved or condoned by superior officers. If the peace officer proves this defense, the employer is independently liable for the injury if the injury was proximately caused by a regulation, practice, procedure, policy, or training approved or condoned by the employer. (4) The employer is also independently liable for the injury if a proximate cause of the injury was the employer's failure to use reasonable care in hiring, training, retaining, supervising, or disciplining the peace officer."

Yes, section 4 of the bill states, "**The court shall award to a prevailing plaintiff actual damages as determined by the trier of fact, and shall make an award of at least nominal damages. The court shall also award to a prevailing plaintiff costs and reasonable attorneys' fees. The court may grant declaratory and injunctive relief as it deems appropriate.**"

No, the bill does not meet the standard.

Yes, although the bill is silent on records disclosure, existing state law is generous regarding disclosure of records for police officer discipline.

Yes, section 3 of the bill states, **“It is not an immunity or defense to an action brought under this chapter that the rights, privileges, or immunities sued upon were not clearly established at the time of the act, omission, or decision by the peace officer or employer**.”

No, the bill does not meet the standard. Section 3 of the bill states, “It is not an immunity or defense to an action brought under this chapter that the rights, privileges, or immunities sued upon were not clearly established at the time of the act, omission, or decision by the **peace officer or employer**.”

Yes, section 3 of the bill states, “Any person injured in person or property by a peace officer acting under color of authority has a cause of action against the peace officer, and against any other peace officer who had the power through reasonable diligence to prevent or aid in preventing the injury from occurring and failed to do so, **if the peace officer engaged in conduct that is unlawful under: (a) The state Constitution;(b) RCW 10.93.160; or (c) RCW 10.120.020."**

Yes, the bill does not address caps and current Washington State statutes do not place caps on civil damage suits.

The bill partially meets the standard. There is no reporting requirement but section 3 of the bill states, “Any person injured in person or property by a peace officer acting under color of authority has a cause of action against the peace officer, **and against any other peace officer who had the power through reasonable diligence to prevent or aid in preventing the injury from occurring and failed to do so**, if the peace officer engaged in conduct that is unlawful under: The state Constitution; (b) RCW 10.93.160; or (c) RCW 10.120.020.”

No, the bill creates substantial carve out to avoid liability. Section 3 of the bill states, “In an action against a peace officer under subsection (1) of this section, the plaintiff may also name the officer's employer as a defendant. The employer is vicariously liable if the unlawful conduct causing the injury was within the scope of the peace officer's employment. (3) (a) A peace officer has a defense against an action brought under subsection (1) of this section if, when the injury occurred, the officer substantially complied with a regulation, practice, procedure, policy, or training that was established by the employer or approved or condoned by superior officers. (b) If the peace officer proves this defense, the employer is independently liable for the injury if the injury was proximately caused by a regulation, practice, procedure, policy, or training approved or condoned by the employer or approved or condoned by superior officers. (c) **A peace officer's employer has a defense against independent liability arising under (b) of this subsection if the training at issue was provided by the criminal justice training commission, or if the policy at issue conformed to published model guidance drafted by the Washington office of the attorney general at the specific request of the Washington state legislature. **(4)(a) The employer is also independently liable for the injury if a proximate cause of the injury was the employer's failure to use reasonable care in hiring, training, or supervising the peace officer. (b) The employer is also independently liable for the injury if a proximate cause of the injury was the employer's failure to use reasonable care in retaining or disciplining the peace officer unless the employer proves that it took disciplinary action against the peace officer and that action was appealed by the officer and reduced or overturned by an independent arbitrator or court.”

No, the court may use their discretion to award attorney feeds. Section 4 of the bill states, “In an action brought under this chapter, the court shall award to a prevailing plaintiff actual damages as determined by the trier of fact, and shall make an award of at least nominal damages. **The court may also award to a prevailing plaintiff costs and reasonable attorneys' fees. The court may grant declaratory and injunctive relief as it deems appropriate**.”

No, the bill does not meet the standard.

Yes, although the bill is silent on records disclosure, existing state law is generous regarding disclosure of records for police officer discipline.