HB 1025 — Creating a private right of action for harm from violations of the state Constitution or state law by peace officers.

H-1235.1H-0167.1 SUBSTITUTE HOUSE BILL 1025 State of Washington 68th Legislature 2023 Regular Session By House Civil Rights & Judiciary (originally sponsored by Representatives Thai, Reed, Berry, Ryu, Simmons, Bateman, Fitzgibbon, Farivar, Peterson, Alvarado, Pollet, Street, Cortes, Doglio, Macri, Gregerson, Stonier, Kloba, and Santos)Santos READPrefiled FIRST12/09/22. TIME 02/14/23.

Read first time 01/09/23.

Referred to Committee on Civil Rights & Judiciary.

amending RCW 4.24.420;

(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 thecriminal law.statutes.

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.law.

1 SHBHB 1025 employers may obtain compensation for their injuries and an award of costs and attorney fees incurred in seeking the remedy.

(a) The state of Washington and all political subdivisions and agencies thereof that act as a peace officer's employingprincipal agency or entity;supervisor;

(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:under the state Constitution or state law.

(a) The state Constitution;

(b) RCW 10.93.160;

or (c) RCW 10.120.020.

(3)(a)(3) 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.

If the peace officer proves this defense, the employer is independently liable for the injury if the injury was proximately caused by a regulation, practice, procedure, policy, or training approved or condoned by the p.

2 SHBHB 1025 (b)employer, Ifunless a peace officer proves a defense under (a) of this subsection, the peacetraining officer's employer is independently liable for the injury if the injury was proximatelyprovided caused by athe regulation,criminal practice,justice procedure,training policy,center, or trainingthe thatpolicy was establishedmodel guidance drafted by the employerWashington oroffice approvedof orthe condonedattorney bygeneral. superior officers.

(c)(4) AThe peaceemployer officer'sis employeralso hasindependently aliable defensefor againstthe independentinjury liabilityif arisinga underproximate (b)cause of thisthe subsectioninjury ifwas the trainingemployer's atfailure issueto wasuse providedreasonable bycare thein criminalhiring, justicetraining, trainingretaining, commission,supervising, or ifdisciplining the policypeace atofficer, issueunless conformedthe todepartment publishedproves modelthat guidanceit draftedwas bynot theable Washingtonto officeuse ofreasonable thecare attorneyin generalretaining ator disciplining the specificofficer requestas ofa theresult Washingtonof statebinding legislature.arbitration.

(d)(5) IfIt ais peacenot officer'san employerimmunity assertsor a defense underto (c)an ofaction thisbrought subsection,under it must within 30 days provide notice of this defense,chapter andthat: all relevant claims and facts in the underlying litigation, to the attorney general and director of the criminal justice training commission.

(e)(a) BeginningThe Decemberrights, 1,privileges, 2025,or andimmunities annuallysued thereafter,upon thewere attorneynot general'sclearly officeestablished mustat provide a report to the chairstime of the houseact, civilomission, rights and judiciary committee and senate law and justice committee, or thedecision chairsby of any successor committees, regarding all employer defenses asserted under (c) of this subsection that were reported to the attorneypeace generalofficer inor theemployer; preceding 12 months.

(4)(a)or The(b) employerAt issuch alsotime, independentlythe liablestate forof the injurylaw ifwas asuch proximatethat causethe ofpeace theofficer injuryor wasemployer thecould employer'snot failurereasonably tohave usebeen reasonableexpected careto inknow hiring,whether training,such oract, supervisingomission, theor peacedecision officer.was lawful.

(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.

InThe 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.nominal damages.

3 SHB 1025 nominal damages.

NEWp. SECTION.

3 HB 1025 NEW SECTION.

NEW SECTION.

RCWSections 4.24.4201 through 8 and 202110 cof 325this sact 1constitute area eachnew amendedchapter toin readTitle as7 follows:RCW.

(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 SHB 1025 NEW SECTION.

Sec.

10.

Sections 1 through 8 and 11 of this act constitute a new chapter in Title 7 RCW.

11.10.

54 SHBHB 1025