From left to right, Dani Bargala-Sanchez, Muckleshoot Councilman Donny Stevenson, Rose Davis, Gabe Galanda, and State Representative My-Linh Thai, after the signing of ESSB 5263
By Gabriel S. Galanda and Ryan Dreveskracht
Yesterday Governor Jay Inslee signed legislation into law that will help Indigenous and other victims of police violence uncover the truth and obtain justice.
Governor Inslee signed ESSB 5263, the so-called “felony bar” reform bill, which was primarily sponsored by Senator David Frockt and advanced by the family of Renee Davis, Muckleshoot and Suquamish Tribes, ACLU of Washington, Washington State Association for Justice, and Washington Coalition for Police Accountability.
The Washington Legislature enacted RCW 4.24.420 as part of the 1986 tort reforms. According to the Seattle Times, that law was passed “as part of a national tort reform movement . . . after a California high school student allegedly stealing spotlights from the roof of a school fell through a skylight and sued” the property owner. The law was not intended to shield police departments from liability.
Since the enactment of the statute in Washington, however, municipalities have successfully asserted the defense to completely bar wrongful death or personal injury claims arising from the deadly or excessive use of force. In other words, local governments and officers have evaded transparency and accountability.
For example, in 2019 the King County Superior Court dismissed a wrongful death action brought by the family of Renee Davis, a pregnant Muckleshoot mother who was killed by two King County Sheriff’s deputies during a welfare check in 2016.
Less than a minute after their arrival and without any plan, the deputies rushed into Renee’s home, past two of Renee’s three children, and into her bedroom with guns drawn. They found Renee lying in her bed, covered in a blanket up to her neck, and staring blankly at the door.
Less than one minute later, they shot Renee dead. She was armed—as the deputies were warned she might be—but the deputies’ accounts of whether and how she allegedly pointed it at them materially differ. She slumped over and said, “It’s not even loaded,” before falling off the bed onto the floor.
The Superior Court dismissed the Davis family’s case pursuant to RCW 4.24.420, regretting that “this case illustrates in a number of respects some issues that you can tell I find somewhat troubling in terms of holes or gaps in the law.”
Last summer, the Washington State Court of Appeals affirmed the trial court’s order also with regret, explaining “that Davis’s death is tragic” and echoing the trial court’s sentiment that the application of RCW 4.24.420 here is problematic because it precludes claims where law enforcement officers’ actions and training may have been unreasonable, given their knowledge that the individual they were confronting was suicidal and armed.” The Court of Appeals later reversed itself and remanded the Davis family’s case for trial.
RCW 4.24.420 also contributed to the King County Superior Court’s recent dismissal of a lawsuit arising from the Seattle Police Department killing of Charleena Lyles, which has since also been overturned by the Washington State Court of Appeals and remanded for trial.
RCW 4.24.420 originally provided, in full:
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 accusing the injury or death and the felony was a proximate cause of the injury or death. However, nothing in this section shall affect a right of action under 42 U.S.C. Sec. 1983.
As the original law specifically noted, an injured party may still bring federal civil rights claims against law enforcement officers who use deadly or excessive force notwithstanding felonious conduct. Federal civil rights claims, however, require a higher standard for misconduct are subject to the prohibitive “qualified immunity” doctrine.
As illustrated by the Davis and Lyles cases, Washington trial courts have applied RCW 4.24.420 in a manner that has prevented juries from deciding cases that involve the deadly or excessive use of force, including in “they said, she’s dead” cases. Courts have dismissed cases against law enforcement agencies on summary judgment based on the original statute by impermissibly weighing evidence and making credibility determinations—all while no felony conviction exists and the only non-law enforcement witness is dead.
Not only have juries been prevented from hearing the case and helping find the truth about officer-involved killings, but cases against the government have been dismissed where the involved officer’s testimony is the only direct evidence of alleged felonious conduct.
This year, the State Legislature clarified the intent of RCW 4.24.420 by passing ESSB 5263. The statute now provides in pertinent part:
(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.
Law enforcement agencies must now prove beyond a reasonable doubt—against the highest standard of proof—that (1) an individual committed a felony and (2) the commission of that felony proximately caused their injury or death. This means that barring the application of some other affirmative defense, each and every case will be allowed to proceed to trial for fact-finding and truth-telling, because the statute clarifies that this determination be made by juries, not judges on pretrial motions.
For those whose loved ones are taken at the hands of law enforcement, we hope the truth will now prevail and justice will be served. For our entire society, we hope others’ lives might now be spared from police violence.
Gabe Galanda and Ryan Dreveskracht are partners at Galanda Broadman, PLLC, an Indigenous rights firm headquartered in Seattle. On behalf of the Davis family, Gabe and Ryan thank Sens. David Frockt and Jaime Pedersen and Reps. Drew Hansen, Debra Lekanoff, My-Linh Thai, Tarra Simmons, Roger Goodman, John Lovick, as well as Katrina Johnson, Chairman Leonard Forsman, Amber Lewis, Dylan Doty, Alison Holcomb, Eric Gonzalez Alfaro, Nancy Talner, Larry Shannon, Kelli Carson, Michael Temple, Tiffany Cartwright, Leslie Cushman, Teri Rogers Kemp, and Mayor Jenny Durkan, for helping getting ESSB 5263 passed into law.
