Juan Peralez: Courts, lawmakers should end qualified immunity

The doctrine provides blanket immunity to officers and others who should face trial for abuses.

Juan Peralez

Juan Peralez

By Juan Peralez / Herald Forum

Qualified immunity is a doctrine now guided by a U.S. Supreme Court case from 1982. The court came up with the doctrine to make it difficult to hold government officials liable for violence and cruelty.

The Supreme Court first introduced the doctrine of qualified immunity (in Pierson v. Ray) in 1967, a case litigated during the Civil Rights Era. It was originally introduced with the rationale of protecting law enforcement.officials from frivolous lawsuits and financial liability when they acted in “good faith” in unclear legal situations.

But qualified immunity has been criticized across the ideological spectrum and became the flash-point in the nationwide uproar in the summer of 2020 over police brutality with both activists and lawmakers calling for its reconsideration by the courts. The biggest criticism is that the doctrine requires plaintiffs to overcome a very daunting hurdle. Plaintiffs must not only show that an officer or official violated a constitutional right but also that the right has been “clearly established” in a previous ruling. A big reason why prosecuting attorneys in most cases don’t bother to proceed with litigation.

The Supreme Court has chided lower courts to grant qualified immunity unless there was a prior decision on point. Joanna C. Schwartz, law professor at the University of California Los Angeles asked “Has the Court heard enough criticisms to perhaps consider changing this standard which doesn’t make sense?” On the other hand Alexander A. Reinert, professor at the Benjamin N. Cardozo School of Law noted that “The Supreme Court remains very committed to qualified immunity being a forceful defense in civil rights cases and certainly in police excessive force.” He doesn’t believe the court is going to take up the larger question of whether qualified immunity itself should be reconsidered.

Shielding by qualified immunity sends an alarming signal to law enforcement and the public. Supreme Court Justice Sonia Sotomayor says “it tells police officers that they can shoot first and think later; it tells the public that palpably unreasonable conduct will go unpunished.” The doctrine is an absolute shield for law enforcement officers.

Four states have ended qualified immunity altogether or limited its application in court cases: Colorado, Connecticut, New Mexico and New York City. In the Washington state Legislature, Rep. My-Linh Thai, D-Newcastle, sponsored House Bill 1202 during the 2021 legislative session. The bill did not advance past the Rules Committee for a second reading on March 20. It will be refiled for considered in the coming session.

It is a given that the current Republican-appointed U.S. Supreme Court justices that constitute a majority will not even consider calls to reconsider the doctrine. The question is, will Washington state lawmakers join the four other states previously mentioned by passing Rep. Thai’s HB 1202 in the 2022 legislative session?

We have a Democratic majority in our Legislature who did a great job last year by passing several bills on police accountability that will help build trust between communities of color and law enforcement but it is not enough if law enforcement is still shielded by the doctrine of qualified immunity.

It is time —way overdue — to do away with a doctrine that makes no sense and only supports and encourages omnipotent policing. We need to look at HB 1202 as a public safety issue as well as a moral and human rights issue. I strongly urge you to call your respective representatives and senators and strongly encourage them to pass HB 1202 next year for the sake of humanity and justice.

Juan Peralez is president of Unidos of Snohomish County, uniting law enforcement and the communities of the county. Learn more at www.unidos-snoco.org.

Talk to us

More in Opinion

Ben Ramirez is doused with water by teammates after the AquaSox beat the Emeralds to clinch a playoff berth on Monday, Sept. 4, 2023, in Everett. (Photo provided by AquaSox)
Editorial: City’s $1 million an investment in Everett baseball

Contracts for preliminary work on an AquaSox stadium honor team’s 40 years of family fun and tradition.

Editorial cartoons for Tuesday, Dec. 5

A sketchy look at the news of the day.… Continue reading

civic health white board
Editorial: Improving civic health starts by coming to table

Efforts locally and at the state level seek to counter the incivility that has mired public discourse.

From the bodycam footage of Everett police officer Ryan Greely and footage from Molly Wright, Wright films officer Greely before he arrests her for obstructing a law enforcement officer on Aug. 10, 2023 in Everett, Washington. (Screenshot from a video provided by Molly Wright)
Editorial: Duties on both sides of camera during arrests

The right to record police activity is clear, but so is the need to respect the safety of officers and others.

Macro photo of tooth wheel mechanism with imprinted RECEIVE, GIVE concept words
Editorial: Get back into charitable habit for Giving Tuesday

Inflation sapped donations for charities last year; things may be looking up this year for more.

Distributor backs deposit return law for beverage containers

In response to the recent 16 editorial (“Making recycling work better takes… Continue reading

Why won’t Congress fix Social Security, Medicare funding?

I have consistently heard how Social Security and Medicare are going to… Continue reading

Harrop: Isn’t most of the food we eat ‘farm to table’?

The term is meant to play up locally grown produce, but who’s growing bananas within a 25 mile radius?

Saunders: Schools’ student absence rates should alarm everyone

National math and reading scores have hit historic lows, Education Week reported in October.

Comment: A GenZ voter has some campaign advice for Biden

Despite what polls and pundits are saying, Biden can win by touting what’s he’s already done for Americans.

Editorial cartoons for Monday, Dec. 4

A sketchy look at the news of the day.… Continue reading

Comment: Officials, citizens can make pledge to build bridges

Two Snohomish County Council members are calling on all to work past incivility in our public lives.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.