Juan Peralez: Courts, lawmakers should end qualified immunity

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.