qualified immunity in Washington

2024Qualified immunity offers protections in cases involving “‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Id. at 539 (internal quotation marks omitted) (quoting Pearson v. Callahan, 555 U.S. 223, 231 , 129 S. Ct. 808 , 172 L.

2024Qualified immunity offers protections in cases involving “‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Id. at 539 (internal quotation marks omitted) (quoting Pearson v. Callahan, 555 U.S. 223, 231 , 129 S. Ct. 808 , 172 L.

2024Although government officials may be entitled to qualified immunity in their individual capacity, “[l]ocal government entities are not entitled to the qualified immunity available to their officials.” Robinson v. City of Seattle, 119 Wn.2d 34, 64 , 830 P.2d 318 (1992), abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682 , 451 P.3d 694 (2019).

2024Although government officials may be entitled to qualified immunity in their individual capacity, “[l]ocal government entities are not entitled to the qualified immunity available to their officials.” Robinson v. City of Seattle, 119 Wn.2d 34, 64 , 830 P.2d 318 (1992), abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682 , 451 P.3d 694 (2019).

2024Cf. Guffey v. State, 103 Wn.2d 144, 152-53 , 690 P.2d 1163 (1984) (municipality enjoys the qualified immunity of its police officers), overruled on other grounds by Savage v. State, 127 Wn.2d 434 , 899 P.2d 1270 (1995); see also Dutton v. Wash. Physicians Health Program, 87 Wn. App. 614, 619 , 943 P.2d 298 (1997) (the medical disciplinary board’s quasi- judicial immunity extended to the State and its agency).

2024Cf. Guffey v. State, 103 Wn.2d 144, 152-53 , 690 P.2d 1163 (1984) (municipality enjoys the qualified immunity of its police officers), overruled on other grounds by Savage v. State, 127 Wn.2d 434 , 899 P.2d 1270 (1995); see also Dutton v. Wash. Physicians Health Program, 87 Wn. App. 614, 619 , 943 P.2d 298 (1997) (the medical disciplinary board’s quasi- judicial immunity extended to the State and its agency).

2024Qualified immunity does not require that a court has previously held the same conduct unconstitutional—rather, “‘in the light of pre-existing law the unlawfulness must be apparent.’” Jones v. State, 170 Wn.2d 338, 355 , 242 P.3d 825 (2010) (quoting Anderson, 483 U.S. at 640 ).

2024Qualified immunity does not require that a court has previously held the same conduct unconstitutional—rather, “‘in the light of pre-existing law the unlawfulness must be apparent.’” Jones v. State, 170 Wn.2d 338, 355 , 242 P.3d 825 (2010) (quoting Anderson, 483 U.S. at 640 ).

2024“Qualified immunity is a potentially dispositive predicate inquiry, ‘conceptually distinct from the merits of the plaintiff’s claim,’ where summary judgment is appropriate if the evidence is insufficient to create a genuine issue of material fact regarding whether the defendant committed acts that violated clearly established law.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 527 , 105 S. Ct. 2806 , 86 L.

2024“Qualified immunity is a potentially dispositive predicate inquiry, 6 No. 39670-3-III Zink, et al v. Scantlin, et al ‘conceptually distinct from the merits of the plaintiff’s claim,’ where summary judgment is appropriate if the evidence is insufficient to create a genuine issue of material fact regarding whether the defendant committed acts that violated clearly established law.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 527 , 105 S. Ct. 2806 , 86 L.

2001Division I has held "where RCW 4.24.510 is raised as a defense in a common law defamation action, the determination of whether a party has prevailed upon the defense, i.e., acted in good faith, is to be made using the same principles that govern claims of abuse of a qualified privilege in common law defamation actions." Gilman, 74 Wash.App. at 738 , 875 P.2d 697 . [4] A qualified privilege protects the maker of the statement from liability for an otherwise defamatory statement unless the defamed party can show the privilege was abused by showing clear and convincing evidence that the declarant

2001Division One has held “where RCW 4.24.510 is raised as a defense in a common law defamation action, the determination of whether a party has prevailed upon the defense, i.e., acted in good faith, is to be made using the same principles that govern claims of abuse of a qualified privilege in common law defamation actions.” Gilman, 74 Wn.

2017Ashcroft v. al-Kidd, 563 U.S. 731, 735 , 131 S. Ct. 2074 , 179 L.

2017Ashcroft v. al-Kidd, 563 U.S. 731, 735 , 131 S. Ct. 2074 , 179 L.

2016Rivera Gomez v. Calero Toledo, 446 U.S. 635, 639-40 , 100 S. Ct. 1920 , 64 L.

2016Rivera Gomez v. Calero Toledo, 446 U.S. 635, 639-40 , 100 S. Ct. 1920 , 64 L.

2012And, in fact, “[a]s the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 , 106 S. Ct. 1092 , 89 L.

2012And, in fact, “[a]s the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 , 106 S. Ct. 1092 , 89 L.

1999But the majority erroneously frames the qualified immunity question as "whether a violation of a constitutional right has occurred ." Majority at 753 (emphasis added) (citing Siegert, 500 U.S. at 232 , 111 S.Ct. 1789 ).

1999But the majority erroneously frames the qualified immunity question as “whether a violation of a constitutional right has occurred.” Majority at 527 (emphasis added) (citing Siegert, 500 U.S. at 232 ).

1991Here, Haueter's claim the trial court applied an incorrect standard of proof under the First Amendment is an issue affecting fundamental constitutional rights and should be considered. 5 Since, under the common law, a qualified privilege could be lost by publishing with malice, in the sense of ill will, Jolly v. Fossum, 63 Wn.2d 537, 542-43 , 388 P.2d 139 (1964), defining abuse of a privilege in terms of knowledge or reckless disregard in Bender is consistent with the New York Times definition of malice.

1991Here, Haueter's claim the trial court applied an incorrect standard of proof under the First Amendment is an issue affecting fundamental constitutional rights and should be considered. 5 Since, under the common law, a qualified privilege could be lost by publishing with malice, in the sense of ill will, Jolly v. Fossum, 63 Wn.2d 537, 542-43 , 388 P.2d 139 (1964), defining abuse of a privilege in terms of knowledge or reckless disregard in Bender is consistent with the New York Times definition of malice.

1999Ward v. Painters’ Local Union No. 300, 41 Wn.2d 859, 865 , 252 P.2d 253 (1953); Restatement (Second) of Torts, § 596.

1999Ward v. Painters’ Local Union No. 300, 41 Wn.2d 859, 865 , 252 P.2d 253 (1953); Restatement (Second) of Torts, § 596.

2025Momah v. Bharti, 144 Wn. App. 731, 747 , 182 P.3d 455 (2008), review granted and case dismissed, 165 Wn.2d 1027 (2009). “ ‘The common interest privilege applies when the declarant and the recipient have a common interest in the subject matter of the communication.’ ” Id. (quoting Moe v. Wise, 97 Wn. App. 950, 957-58 , 989 P.2d 1148 (1999)).

2015A qualified privilege, on the other hand, may be lost if it can be shown that the privilege has been abused.'" Momah. 144 Wn. App. at 741 (quoting Bender. 99 Wn.2d at 600 ).

2025App. 38 Nos. 58269-4-II / 58272-4-II 2d 708, 715, 429 P.3d 6 (2018) (quoting Bender v. City of Seattle, 99 Wn.2d 582, 600 , 664 P.2d 492 (1983)), review denied, 192 Wn.2d 1021 (2019).

2020Thus, we assume, without deciding, that the conditional privilege granted by RCW 28B.10.648(1) is in derogation of the common law. 57 RCW 28B.10.648(1). 58 See McNamara v. Koehler, 5 Wn. App. 2d 708 , 715, 429 P.3d 6 (2018) (explaining an absolute privilege shields a speaker from “all liability,” whereas a qualified privilege can be lost if abused) (citing Bender, 99 Wn.2d at 600 ), review denied, 192 Wn.2d 1021 , 433 P.3d 816 (2019); see also Bender, 99 Wn.2d at 601 -02 14 conferring only a conditional immunity upon faculty in hiring committees, the legislature implicitly rejected the possibi

2024Owen v. City of Independence, 445 U.S. 622, 638 , 100 S. Ct. 1398 , 63 L. Ed. 2d 673 (1980). 16 See Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 CORNELL L. REV. 482, 484-86 (1982), and Katherine A. Macfarlane, Accelerated Civil Rights Settlements in the Shadow of Section 1983, 2018 UTAH L. REV. 639, 660-63, for a discussion of the historical origins and evolution of § 1983, which was enacted as part of the Ku Klux Act of 1871 in response to states’ failure to enforce the law against violent backlash by the Ku Klux Klan and other powerful government actors

2024Owen v. City of Independence, 445 U.S. 622, 638 , 100 S. Ct. 1398 , 63 L. Ed. 2d 673 (1980). 16 See Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 CORNELL L. REV. 482, 484-86 (1982), and Katherine A. Macfarlane, Accelerated Civil Rights Settlements in the Shadow of Section 1983, 2018 UTAH L. REV. 639, 660-63, for a discussion of the historical origins and evolution of § 1983, which was enacted as part of the Ku Klux Act of 1871 in response to states’ failure to enforce the law against violent backlash by the Ku Klux Klan and other powerful government actors

2023In the second part of our analysis, we construe some of the factors that must be proved by clear and convincing evidence to overcome the qualified privilege.4 A. THE QUALIFIED PRIVILEGE In Senear v. Daily Journal-American, 97 Wn.2d 148 , 641 P.2d 1180 (1982), our Supreme Court recognized that journalists had a common law privilege with respect to their sources of information.

2023In the second part of our analysis, we construe some of the factors that must be proved by clear and convincing evidence to overcome the qualified privilege.4 A. THE QUALIFIED PRIVILEGE In Senear v. Daily Journal-American, 97 Wn.2d 148 , 641 P.2d 1180 (1982), our Supreme Court recognized that journalists had a common law privilege with respect to their sources of information.