Written by Jared Nieuwenhuis, Deputy Mayor, City of Bellevue, Washington. It includes editorial content which is the opinion of the writer.
The abolition of qualified immunity will further erode public safety
Olympia, WA: The 2023 legislative session in Olympia doesn’t start till January 9th, but we’re already seeing what’s to come. This is based on bills that have already been filed by legislators who are looking to get a jump start.
This comes at a time when many municipalities in our state are struggling with surging crime and recruiting and retaining quality officers. It’s increasingly clear that we will continue to see a legislative onslaught of policies that would provide fewer police, less enforcement, and more crime.
These are legislative attempts to covertly “defund the police” without ever saying those words.
One of the pre-filed bills, HB 1025, seeks to eliminate qualified immunity for police officers. Qualified immunity protects police officers or government officials from liability for civil damages as long as their conduct does not egregiously violate constitutional rights.
If, for example, an officer is shot at, returns fire, and inadvertently hits an innocent bystander, qualified immunity could protect the officer from a civil lawsuit. Qualified immunity does not mean that a victim has no recourse.
Any rogue officer can still be held personally liable and sued for their actions.
Officers who violate department policies can also be disciplined or fired, and those who commit crimes are criminally prosecuted just like anyone else. Victims of police errors or crimes also often receive financial compensation from the department or by suing the corresponding government entity.
Exposing peace officers to frivolous lawsuits is far from necessary to ensure justice and accountability. It only makes officers second guess a decision which decreases public safety and increases the risk to the officer of bodily harm.
The 1986 Supreme Court Decision
The supreme court wrote that qualified immunity does not protect “the plainly incompetent or those who knowingly violate the law,” in a 1986 decision.
Thus, contrary to the arguments made by anti- police activists, qualified immunity does not make it impossible to sue an officer for violating your rights.
Qualified immunity is essential for effective and diligent community-based policing. While protecting the rights of citizens, it also protects law enforcement from malicious lawsuits that otherwise financially cripple them personally and decimate departments.
Consequences of Eliminating Qualified Immunity
Not only would HB 1025 ensure that officers would leave the state in droves, but it would make the remaining officers all but ineffective in enforcing the law.
Why would an officer go out on a limb or put themselves in harm’s way knowing that a split-second decision, could bankrupt their entire family?
Under the threat of prosecution or civil liability, many officers would be reluctant to be proactive or actively pursue criminals.
This bill would have a similar negative impact on public safety as House Bill 1310 did, which was signed into law in 2021. House Bill 1310 resulted in nearly 50,000 auto thefts in our state (an all-time high) because officers can no longer pursue suspects based on “reasonable suspicion.” Washington State is the only state in the country that has departed from the reasonable suspicion standard.
Insurance Companies and the Justice System
University of Virginia School of Law Professor Kenneth S. Abraham, one of the nation’s leading scholars in torts and insurance law, wrote that without qualified immunity, police would be forced to procure private insurance against personal lawsuits.
Naturally, this would not only increase the cost of policing and further stress city budgets, but it would also put insurance companies in a position to influence law enforcement policies and practices. It’s not hard to see a scenario in which insurance companies would ultimately demand that cities limit their policing activities that expose officers to higher liability situations to avoid higher costs and risks for the company.
Police departments would not focus on effective law enforcement practices or citizens’ best interests but insurance executives who would dictate public safety policies for residents in their community. Those with legitimate claims against Police officers would have to face off against insurance-company lawyers — who are not motivated by justice or fairness but rather protecting their company’s profits.
When police officers put on their uniforms each morning and put their lives at risk to protect our community, they shouldn’t have to worry about financial ruin just for doing their job. We should protect those who protect us, which means maintaining qualified immunity.
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