Government Liability for Shootings

Government Liable for Shooting Deaths

In this blog post, I argue that local governments may be held liable when they fail to secure firearms when given the opportunity and direction to do so. Indeed, by holding the government accountable, we may be able to prevent tragic shootings like the one that just happened in Sutherland Springs, Texas.

In courtrooms around the country, local governments are being held responsible when guns are not taken away from people who pose a known threat and who later turn those weapons on the innocent.

The town of Newton, Connecticut was held liable when police failed to take a firearm carried by a defendant when he was arguing with his girlfriend. Six days after the argument, the man returned to the home and used the same weapon the police had seen him with to kill his girlfriend and then himself. Czap v. Town of Newton, 1998 Conn. Super. Lexis 3720 (1998).

Finding governments liable is nothing new in these situations. In 1965, A New York State Court found a the City of Watertown could be liable after the police returned a confiscated weapon to a man who had no permit for the weapon and when the police knew he had threatened others with the weapon. Several months after returning the weapon to this man, he shot his wife and then himself. Benway v. City of Watertown, 1A.D. 2d 465 (N.Y. A.D. 4th 1956).

In Washington State, our Courts have determined there is a special duty of care that arises for agents of the government such as police officers. For example, when police officers allow a drunk driver to continue to drive and that driver injures another person, the police are liable for the injuries that result. Bailey v. Town of Forks, 108 Wn.2d 262, 737 P.2d 1257 (1987).

The Court in Bailey set forth four situations in which the government acquires a special duty of care owed to a particular plaintiff so that the public duty doctrine would not apply and there would be liability for the government. Those are:

These exceptions include: (1) when the terms of a legislative enactment evidence an intent to identify and protect a particular and circumscribed class of persons (legislative intent), Halvorson v. Dahl, supra, 89 Wash.2d at 676-77, 574 P.2d 1190; (2) where governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, fail to take corrective action despite a statutory duty to do so, and the plaintiff is within the class the statute intended to protect (failure to enforce), Campbell v. Bellevue, supra, 85 Wash.2d at 12-13, 530 P.2d 234, Mason v. Bitton, supra, 85 Wash.2d at 326-27, 534 P.2d 1360; (3) when governmental agents fail to exercise reasonable care after assuming a duty to warn or come to the aid of a particular plaintiff (rescue doctrine), Brown v. MacPherson’s, Inc., 86 Wash.2d 293, 299, 545 P.2d 13 (1975), see also Chambers-Castanes v. King Cy., supra, 100 Wash.2d at 285 n. 3, 669 P.2d 468; or (4) where a relationship exists between the governmental agent and any reasonably foreseeable plaintiff, setting the injured plaintiff off from the general public and the plaintiff relies on explicit assurances given by the agent or assurances inherent in a duty vested in a governmental entity (special relationship), Chambers-Castanes v. King Cy., supra at 286, 669 P.2d 468, J & B Dev. Co. v. King Cy., supra.

Bailey v. Town of Forks, 108 Wn.2d at 268.

The Washington State Supreme Court concluded in Bailey that the Town of Forks was liable because the police officer was a government agent who failed to enforce the laws.   The Forks police officer had a duty to enforce the drunk driving statues. These statutes provide for criminal penalties for driving under the influence. RCW 46.61.515. Right before he got into the collision, the drunk driver was contacted by the Forks police and ordered to leave the scene of a disturbance at a tavern. The police officer knew or should have known the driver was intoxicated and yet he ordered him into his car to drive away from the scene. Finally, Ms. Bailey was riding as a passenger on a motorcycle when the truck driven by the drunk driver hit her. She was clearly one of the people the legislature was trying to protect when it enacted drunk driving laws.

Our legislature has mandated that when domestic violence protection orders are issued the respondent must surrender that firearms. RCW 9.41.800(3). Accordingly, it can be argued that this legislative enactment, which is clearly designed to protect victims of domestic violence, is not followed up on that the government could be held liable. If it also turns out that the police had knowledge the person had a weapon, but did nothing about it, they could definitely be held liable if another individual is harmed with the weapon.

On September 23, 2016 Arcan Cetin opened fire on shoppers in the Cascade Mall in Burlington, Washington killing five people. He had previously been charged with multiple counts of domestic violence and ordered by a judge not to possess any firearms. However, no one ever bothered to check up on him on the firearms he had. http://beta.latimes.com/nation/la-na-washington-shooting-20160925-snap-story.htmlhttp://beta.latimes.com/nation/la-na-washington-shooting-20160925-snap-story.html

On September 24, 2016, Rashied Mitchell had only been out of jail for 12 days after threatening to knock his girlfriend out when he shot and killed her. https://www.seattletimes.com/seattle-news/crime/accused-killer-had-just-been-freed-without-bail-in-auburn-domestic-violence-case/ At the time of her death, the victim, Tabitha Apling, had a protection order in place against her boyfriend. No one apparently took the time to make sure Mr. Mitchell had turned in his weapons. As a direct consequence of the police and court inaction, Ms. Apling lost her life.

As we know now, Devin Kelley, who killed 26 people in a small Texas church on   should never have been allowed to have a weapon after being convicted of a domestic violence offense in the Air Force.   The Air Force never entered the information in the national database, so the gun sellers were not aware of the conviction and Mr. Kelley’s ineligibility to possess a firearm. http://www.businessinsider.com/devin-kelley-domestic-violence-conviction-air-force-ncis-database-2017-11

In 2014, Washington legislature passed bill requiring all those who get Domestic Violence Protection Orders (DVPO’s) to surrender firearms. RCW 9.41.800 makes it a crime not to surrender the firearm.

The law also allows the individual to file a declaration of nonsurrender if they don’t own the firearm. Seattle Municipal Code 12A.06.196

It is apparent by doing some basic math that there are a lot of firearms out there in the hands of individuals who should not have them:

In 2015 – 2,638 DVPO orders issued in King County alone.

The average ownership of firearm in King Co is 24% of households.

Firearms were surrendered in only 2% of DVPO cases.

A declaration of non-surrender filed in 44% of cases

The firearm order was ignored order completely 54%

This means that the possible number of firearms unaccounted for in the hands of domestic violence perpetrators is 580 in King County just in the year 2015.

It is not uncommon for individuals to just lie to the Court and file the declaration indicating they don’t own a firearm. http://www.king5.com/news/local/investigations/guns-and-lies-a-day-in-court-with-domestic-abusers/457738082

Fortunately, some prosecutors like Chris Anderson from the City of Seattle are starting to do something about this and trying to take firearms away from the people the Court has ordered not to have them. http://www.king5.com/news/local/investigations/new-task-force-seizes-guns-from-accused-domestic-abusers/486711039 Hopefully, this will prevent many deaths in the future.