Bill Summary – FastDemocracy

H-1498.1
                       SECOND SUBSTITUTE HOUSE BILL 1025
     State of Washington         68th Legislature     2023 Regular Session
     By House Appropriations (originally sponsored by Representatives
     Thai, Reed, Berry, Ryu, Simmons, Bateman, Fitzgibbon, Farivar,
     Peterson, Alvarado, Pollet, Street, Cortes, Doglio, Macri, Gregerson,
     Stonier, Kloba, and Santos)
     READ FIRST TIME 02/24/23.
     AN ACT Relating to creating a private right of action for harm
 from violations of the state Constitution or state law by peace
 officers; amending RCW 4.24.420; adding a new chapter to Title 7 RCW;
 creating a new section; and providing an effective date.
 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     NEW SECTION.    Sec. 1.    (1) The state of Washington and its
 subdivisions undertake to protect the safety of individuals and to
 preserve public peace by employing peace officers entrusted with the
 power to arrest, detain, and use force against individuals suspected
 of violating the law. It is the intent of the legislature to provide
 a meaningful legal remedy under state law for persons who are injured
 when a peace officer or the officer's employer violates the state
 Constitution or certain state laws.
     (2) The legislature finds that the lack of such a remedy
 jeopardizes justice for the victims and implies impunity for the
 violators. In order to foster the important public policy of
 accountability for unlawful policing and promote trust between
 communities and law enforcement, and in recognition of remedial
 deficiencies in existing federal law and Washington common law, this
 chapter establishes a more meaningful remedy through a civil cause of
 action by which victims of such misconduct by peace officers or their
                                       p. 1                         2SHB 1025
 employers may obtain compensation for their injuries and an award of
 costs and attorney fees incurred in seeking the remedy. By enacting
 this chapter, the legislature intends to preclude the creation of the
 doctrine of qualified immunity as it has developed in litigation of
 suits under 42 U.S.C. Sec. 1983.
     NEW SECTION.    Sec. 2.    The definitions in this section apply
 throughout   this  chapter   unless  the   context  clearly   requires
 otherwise.
     (1) "Employer" means:
     (a) The state of Washington and all political subdivisions and
 agencies thereof that act as a peace officer's employing agency or
 entity; and
     (b) Any private entity that, under a contract or agreement with
 the state or a subdivision of the state, supervises a peace officer
 or any other person exercising the powers of a peace officer.
     (2) "Peace officer" has the meaning defined in RCW 43.101.010.
     (3) "Person" means a natural person and, if the natural person
 has died, includes the person's estate and statutory beneficiaries.
     NEW SECTION.    Sec. 3.    (1) 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.
     (2) 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 peace
 officer's employer or approved or condoned by superior officers.
                                     p. 2                        2SHB 1025
     (b) If a peace officer proves a defense under (a) of this
 subsection, the peace officer's employer is independently liable for
 the injury if the injury was proximately caused by a regulation,
 practice, procedure, policy, or training that was established 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.
     (d) If a peace officer's employer asserts a defense under (c) of
 this subsection, it must within 30 days provide notice of this
 defense, and all relevant claims and facts in the underlying
 litigation, to the attorney general and director of the criminal
 justice training commission.
     (e) Beginning December 1, 2025, and annually thereafter, the
 attorney general's office must provide a report to the chairs of the
 house civil rights and judiciary committee and senate law and justice
 committee, or the chairs of any successor committees, regarding all
 employer defenses asserted under (c) of this subsection that were
 reported to the attorney general in the preceding 12 months.
     (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.
     (5) 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.
     NEW SECTION. Sec. 4. 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
                                     p. 3                        2SHB 1025
 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.
     NEW SECTION.    Sec. 5.     (1) This chapter must be liberally
 construed to effect its beneficial and remedial purposes.
     (2) Nothing in this chapter affects any other common law or
 statutory right of action available to the plaintiff.
     NEW SECTION. Sec. 6. A cause of action under section 3 of this
 act must be commenced within three years after the cause of action
 accrues.
     NEW SECTION.  Sec. 7.   Nothing in this chapter is intended to
 limit the right of a peace officer to have a legal defense provided
 at the expense of his or her public employer or to having any
 judgment under this chapter satisfied by such employer under chapter
 4.92 or 4.96 RCW.
     NEW SECTION.   Sec. 8.   This chapter applies only to causes of
 action arising on or after the effective date of this section.
     Sec. 9. RCW 4.24.420 and 2021 c 325 s 1 are each amended to read
 as follows:
     (1) Except in an action arising out of law enforcement activities
 resulting in personal injury or death, it is a complete defense to
 any action for damages for personal injury or wrongful death that the
 person injured or killed was engaged in the commission of a felony at
 the time of the occurrence causing the injury or death and the felony
 was a proximate cause of the injury or death.
     (2) In an action arising out of law enforcement activities
 resulting in personal injury or death, it is a complete defense to
 the action that the finder of fact has determined beyond a reasonable
 doubt that the person injured or killed was engaged in the commission
 of a felony at the time of the occurrence causing the injury or
 death, the commission of which was a proximate cause of the injury or
 death.
     (3) Nothing in this section shall affect a right of action under
 42 U.S.C. Sec. 1983 or chapter 7.--- RCW (the new chapter created in
 section 10 of this act).
                                     p. 4                        2SHB 1025
     NEW SECTION. Sec. 10. Sections 1 through 8 and 11 of this act
 constitute a new chapter in Title 7 RCW.
    NEW SECTION.   Sec. 11.   This act takes effect January 1, 2025.
     NEW SECTION. Sec. 12. If specific funding for the purposes of
 this act, referencing this act by bill or chapter number, is not
 provided by June 30, 2023, in the omnibus appropriations act, this
 act is null and void.
                                  --- END ---
                                     p. 5                        2SHB 1025
Statutes affected: 
Substitute Bill: 4.24.420
Second Substitute: 4.24.420