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

To Kill A Mockingbird by Harper Lee
Editorial: Keep ‘Mockingbird’ on Mukilteo ninth-graders’ list

Concerns about the 1960 novel are legitimate, but allow students to learn from those criticisms.

Editorial cartoons for Tuesday, Jan. 18

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

With long-term care insurance, It's important to look at how the benefits are structured. (Dreamstime/TNS)
Editorial: Fix WA Cares and let it resume its important work

The long-term care program needs modest changes to fairly provide a valuable benefit to seniors.

FILE - Elementary school teacher Carrie Landheer protests for stronger COVID-19 safety protocols outside Oakland Unified School District headquarters on Jan. 7, 2022, in Oakland, Calif. Officials across the U.S. are again weighing how and whether to impose mask mandates as COVID-19 infections soar and the American public grows weary of pandemic-related restrictions. Much of the debate centers around the nation’s schools, some of which closed due to infection-related staffing issues. (AP Photo/Noah Berger, File)
Editorial: Keep guard up against covid’s omicron variant

As much as half of the county could be infected by the variant; and hospitalizations are surging.

Gary Holt, who reads bills being considered in the Washington House, wears a mask as he sits behind a plexiglass shield with reflections of state representatives meeting remotely on it, Wednesday, April 21, 2021, at the Capitol in Olympia Wash. The House was considering a proposed new tax in Washington state on capital gains that would be imposed on the sale of stocks and bonds in excess of $250,000. (AP Photo/Ted S. Warren)
Editorial: Add your voice to Legislature’s 60-day session

It’ll go quickly, but state lawmakers’ packed agenda includes transportation, policing and the budget.

Lawmakers should restore public employees COLA

The Public Employees Retirement System (PERS) system and Teachers Retirement System (TRS)… Continue reading

Biden not responsible for inflation; it’s supply and demand

I received an economics degree from a top-20 business college and an… Continue reading

Media must offer balanced news

This is a cry for balanced news. More voices need to be… Continue reading

Comment: Survey shows link between racism, election views

A poll shows those who acknowledge a racial advantage for whites show greatest concern for democracy.

Most Read