Prosecutor liability

AN ACT Relating to the establishment of liability standards for 1
prosecutors; amending RCW 4.92.070, 4.92.075, and 4.96.041; adding a 2
new chapter to Title 7 RCW; and providing an effective date.3
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:4
NEW SECTION. Sec. 1. (1) Any person injured by an individual 5
who was previously arrested for a violent offense, and subsequently 6
released from custody before trial for such offense as a result of a 7
state prosecutor declining to file reasonable criminal charges 8
against the individual, has a cause of action against such prosecutor 9
if: (a) The individual caused the injury after being released from 10
custody; and (b) the prosecutor failed to adequately consider the 11
risk of public harm that could result from failing to bring 12
reasonable criminal charges against the individual.13
(2) For the purposes of this section, "violent offense" has the 14
same meaning as defined in RCW 9.94A.030. 15
(3) For the purposes of this section, "state prosecutor" means 16
all prosecuting attorneys as that term is defined in RCW 36.27.005, 17
and all deputy prosecuting attorneys and special deputy prosecuting 18
attorneys as provided for in RCW 36.27.040. 19
(4) For the purposes of this section, adequate consideration 20
requires: 21
H-1030.2
HOUSE BILL 1890
State of Washington 69th Legislature 2025 Regular Session
By Representatives Graham, Chase, and Walsh
Read first time 02/07/25. Referred to Committee on Civil Rights &
Judiciary.
p. 1 HB 1890
(a) A written and published assessment that analyzes:1
(i) All known evidence about the individual's alleged violent 2
offense, criminal record, and risk of engaging in further violence;3
(ii) The vulnerability of anyone the individual has previously 4
victimized or is likely to victimize in the future; and5
(iii) The adequacy of alternatives to reasonable criminal 6
prosecution for mitigating the risk the individual may cause harm to 7
others if he or she is not prosecuted; and 8
(b) Consideration of all relevant and reasonably available 9
evidence, including public records, and the testimony of law 10
enforcement officials and experts and crime victims and crime victim 11
advocates. 12
(5) For the purposes of this section, whether the criminal 13
charges filed were reasonable is a question of fact and requires 14
consideration of the totality of the circumstances known to the state 15
prosecutor who made the charging decision. 16
(6) No form of prosecutorial immunity may be raised as an 17
immunity or defense to any action brought under this section, 18
including without limitation any immunity or defense premised on the 19
argument that a prosecutor has absolute immunity from liability when 20
acting within the scope of their duties in initiating and pursuing a 21
criminal prosecution, or that immunity is warranted or necessary to 22
protect the prosecutor's role as an advocate or the administration of 23
justice. 24
(7) In an action brought under this section, the court shall 25
award to a prevailing plaintiff actual damages as determined by the 26
trier of fact, and shall make an award of at least nominal damages. 27
The court may also award to a prevailing plaintiff costs and 28
reasonable attorneys' fees. The court may grant declaratory and 29
injunctive relief as it deems appropriate. 30
(8)(a) Except as provided in (b) of this subsection, nothing in 31
this section is intended to limit the right of an elected or 32
appointed official to have a legal defense provided at the expense of 33
the state or a political subdivision of the state, or to have any 34
judgment under this section satisfied by the state or a political 35
subdivision of the state under chapter 4.92 or 4.96 RCW.36
(b) Whenever a claim is brought under this section, if the trier 37
of fact finds by clear and convincing evidence that the defendant 38
intentionally, knowingly, or recklessly disregarded the risk of 39
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public harm when the defendant declined to file reasonable criminal 1
charges, then: 2
(i) The defendant shall be personally liable for all costs of 3
defense and judgment; 4
(ii) The state and any political subdivision of the state must 5
not pay any of the defendant's subsequent costs of defense or 6
judgment; and 7
(iii) Any costs of defense the state or any political subdivision 8
of the state has previously paid must be repaid by the defendant 9
within one year of entry of judgment. 10
(9) A cause of action under this section must be commenced within 11
three years after the cause of action accrues. For the purpose of 12
this section, a cause of action accrues when the plaintiff discovers, 13
or in the reasonable exercise of diligence should discover, the 14
elements of the cause of action. 15
(10) This section must be liberally construed to effect its 16
beneficial and remedial purposes. 17
(11) Nothing in this section affects any other common law or 18
statutory right of action available to a plaintiff.19
(12) This section applies only to causes of action arising on or 20
after the effective date of this section. 21
Sec. 2. RCW 4.92.070 and 1999 c 163 s 5 are each amended to read 22
as follows: 23
((If)) Except as provided in section 1 (8) of this act, if the 24
attorney general shall find that said officer, employee, or 25
volunteer's acts or omissions were, or were purported to be in good 26
faith, within the scope of that person's official duties, or, in the 27
case of a foster parent, that the occurrence arose from the good 28
faith provision of foster care services, said request shall be 29
granted, in which event the necessary expenses of the defense of said 30
action or proceeding relating to a state officer, employee, or 31
volunteer shall be paid as provided in RCW 4.92.130. In the case of a 32
foster parent, necessary expenses of the defense shall be paid from 33
the appropriations made for the support of the department to which 34
such foster parent is attached. In such cases the attorney general 35
shall appear and defend such officer, employee, volunteer, or foster 36
parent, who shall assist and cooperate in the defense of such suit. 37
However, the attorney general may not represent or provide private 38
representation for a foster parent in an action or proceeding brought 39
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by the department of social and health services against that foster 1
parent. 2
Sec. 3. RCW 4.92.075 and 1989 c 413 s 2 are each amended to read 3
as follows: 4
((When)) Except as provided in section 1 (8) of this act, when a 5
state officer, employee, or volunteer has been represented by the 6
attorney general pursuant to RCW 4.92.070, and the body presiding 7
over the action or proceeding has found that the officer, employee, 8
or volunteer was acting within the scope of his or her official 9
duties, and a judgment has been entered against the officer, 10
employee, or volunteer pursuant to chapter 4.92 RCW or 42 U.S.C. Sec. 11
1981 et seq., thereafter the judgment creditor shall seek 12
satisfaction only from the state, and the judgment shall not become a 13
lien upon any property of such officer, employee, or volunteer.14
Sec. 4. RCW 4.96.041 and 1993 c 449 s 4 are each amended to read 15
as follows: 16
(1) Whenever an action or proceeding for damages is brought 17
against any past or present officer, employee, or volunteer of a 18
local governmental entity of this state, arising from acts or 19
omissions while performing or in good faith purporting to perform his 20
or her official duties, such officer, employee, or volunteer may 21
request the local governmental entity to authorize the defense of the 22
action or proceeding at the expense of the local governmental entity.23
(2) If the legislative authority of the local governmental 24
entity, or the local governmental entity using a procedure created by 25
ordinance or resolution, finds that the acts or omissions of the 26
officer, employee, or volunteer were, or in good faith purported to 27
be, within the scope of his or her official duties, the request shall 28
be granted. ((If)) Except as provided in section 1 (8) of this act, if 29
the request is granted, the necessary expenses of defending the 30
action or proceeding shall be paid by the local governmental entity. 31
((Any)) Except as provided in section 1 (8) of this act, any monetary 32
judgment against the officer, employee, or volunteer shall be paid on 33
approval of the legislative authority of the local governmental 34
entity or by a procedure for approval created by ordinance or 35
resolution. 36
(3) The necessary expenses of defending an elective officer of 37
the local governmental entity in a judicial hearing to determine the 38
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sufficiency of a recall charge as provided in RCW ((29.82.023)) 1
29A.56.140 shall be paid by the local governmental entity if the 2
officer requests such defense and approval is granted by both the 3
legislative authority of the local governmental entity and the 4
attorney representing the local governmental entity. The expenses 5
paid by the local governmental entity may include costs associated 6
with an appeal of the decision rendered by the superior court 7
concerning the sufficiency of the recall charge. 8
(4) ((When)) Except as provided in section 1 (8) of this act, when 9
an officer, employee, or volunteer of the local governmental entity 10
has been represented at the expense of the local governmental entity 11
under subsection (1) of this section and the court hearing the action 12
has found that the officer, employee, or volunteer was acting within 13
the scope of his or her official duties, and a judgment has been 14
entered against the officer, employee, or volunteer under chapter 15
4.96 RCW or 42 U.S.C. Sec. 1981 et seq., thereafter the judgment 16
creditor shall seek satisfaction for nonpunitive damages only from 17
the local governmental entity, and judgment for nonpunitive damages 18
shall not become a lien upon any property of such officer, employee, 19
or volunteer. The legislative authority of a local governmental 20
entity may, pursuant to a procedure created by ordinance or 21
resolution, agree to pay an award for punitive damages.22
NEW SECTION. Sec. 5. Section 1 of this act constitutes a new 23
chapter in Title 7 RCW.24
NEW SECTION. Sec. 6. This act takes effect January 1, 2026.25
NEW SECTION. Sec. 7. If any provision of this act or its 26
application to any person or circumstance is held invalid, the 27
remainder of the act or the application of the provision to other 28
persons or circumstances is not affected.29
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