Personal Safety and The Law

Personal Safety

From Whence Does Your Safety Come?

I’m ‘old school.’ When I was a kid, we didn’t lock the front door at night and our neighbors had a copy of our house key. As long as I checked in at meal times and before dark, my parents weren’t at all worried with me running all around the neighborhood. In those days, I would never have imagined that children would be abducted for pedophelic sex slavery. Plots of domestic terrorism in Hollywood films would have been implausible. Erosion of traditional Judeo-Christian values and extremism of all varieties have changed times for the worse.

More than ever before, one of the emerging narratives in our society is personal safety. Most people see it as a right. I don’t disagree. But, the question is from what does that right emerge and who owes each individual the right of their own personal safety? Criminal laws indirectly establish our right to be free from the illegal acts that are prohibited. Arrest, prosecution, responsibility for restitution, payment of damages and incarceration can be the retribution ordered if any of those banned acts are planned and/or committed. Criminal prosecution is the consequence of criminal activity. The protective nature of that paradigm is to punish people for not making a good choice AFTER they act badly.

What is there in our society to prevent people from engaging in illegal acts BEFORE they start planning and/or committing the crime? Who is responsible for that? Many people would say that is the role of the police. Many of those same people would also say, that is why citizens don’t need to be armed – police are best trained to carry guns. But, as a matter of public policy, if police carry guns and keep us safe, then shouldn’t we have the right to sue police we are harmed by a criminal?

Wrong! There is a doctrine which originated during Medieval times in England and made its way into our common law, called sovereign immunity. In Merry Ole England, a person could not sue the King, unless the Crown granted that authority. Put simply in modern terms for our time, you can’t sue the government unless there is law which permits it. Tort claims statutes are in that category. Tort law is defined by Black’s Law Dictionary, as “A private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages.” Examples of torts include personal injury, infliction of emotional distress, pain & suffering, and outrage. One may say that tort injuries are caused when someone is negligent with a duty to not harm another person and damages result.

Police are a government agency. Government agencies are generally entitled to sovereign immunity, unless that protection is waived by statute. In Washington, the type of sovereign immunity that protects police from being sued by citizens is called, The Public Duty Doctrine. An example of how that works is found in the case of Oliver v. Cook, 194 Wash. App. 532, 539, 377 P.3d 265 (2016). Mr. Oliver sued the Grays Harbor Sheriff Department to recover damages from a bite he got from a dog named, Scrappy . He argued that the police did not enforce a department policy that should otherwise have protected him from that harm. It appears from the narrative facts that Scrappy was a known biter. The Court disagreed and dismissed the lawsuit.

The Court in Oliver v. Cook issued a precedential legal opinion, stating:

“A government is not liable for negligence unless it breached a duty of care. Gorman v. Pierce County, 176 Wash. App. 63, 75, 307 P.3d 795 (2013). Under the public duty doctrine, a party must show that the government breached a duty it owed to the injured person as an individual rather than an obligation it owed to the public at large. King v. Hutson, 97 Wash. App. 590, 594, 987 P.2d 655 (1999). If the public duty doctrine applies, the government is determined to owe no duty to the particular plaintiff. Taylor v. Stevens County, 111 Wash.2d 159, 163, 759 P.2d 447 (1988).”

The Court reminded everyone that there are only four exceptions to the Public Duty Doctrine under Babcock, 144 Wash.2d at 786, 30 P.3d 1261. By the way, the injured party has the burden to prove that the government was liable to protect them. Those exceptions are:

  1. Where the legislature showed intent to impose a duty of care by statute;
  2. Where a “special relationship” exists between the public entity and the injured party;
  3. Where the government agent has engaged in a “volunteer rescue” attempt;
  4. Where the government is liable for “failure to enforce” a specific statute.

The “failure to enforce” exception is most relevant to this article, since in a perfect world it would be wonderful if a citizen could make a claim against the police for prevent a criminal from committing a crime that ended up injuring the citizen. Mr. Oliver found out the hard way that,

“Courts applying the failure to enforce exception have been clear: the County must have knowledge of a violation of an enactment with the force of law (be it a statute, ordinance, or regulation) that triggers a duty to protect a member of a class intended by the enacting body.”

Id., at 541.

By sharing this, I do not intend to communicate that police are ineffective or undedicated. I appreciate the service of each and every law enforcement officer and military service member. They put their lives on the line for us every day. They are patriots and heroes. For that, I am deeply grateful. However, we must keep in mind that the mission of our uniformed services is to protect our community and nation. Except for a few exceptions, their mission is not to protect each and every one of us individually. That reminds me of a funny quip – A little old lady asked a cowboy why he carried a Colt .45 revolver on his hip? The grizzled rancher smiled kindly and replied, “Well Ma’am, it’s than a cop.” The lady follow-up with, “So, what are you so afraid of?” Mr. Cowboy leaned closer and replied, “Nothing”. We People have fire extinguishers because they want to a tool to stop fire, not because they are afraid of it.

Just the same, each and every one of us must take personal responsibility for our own safety and that of our loved ones. At a bar luncheon a while back, Spokane Co. Sheriff, Ozzie Knezovich, told me that his deputies can’t be everywhere at all times in his jurisdiction, so he views every law abiding and responsible citizen as an extension of his force. Thinking back to my childhood again, I knew every neighbor on our street. They all knew me and my family, too. If any of use saw anything out of the ordinary, that news traveled like wildfire and the fathers would pull together and address it. Situational awareness is keen.

Pay attention and use all five of your senses. Exercise common sense – if you feel at risk, chances are you vulnerable. Get off the “X” and leave any situation that is unsafe. If it is too good to be true, double-check. Make sure you always have a backup plan. Alone, especially in a strange place at night, is bad juju. A retired police commander told me that less than 1% of people survive being taken hostage in a vehicle. He recommended that if you are approached by someone with hostile intent while trying to enter a vehicle, throw your keys down a drain or far away and escape by running the opposite direction. Make sure you never are in a vehicle with a dangerous person.

Many choose to be very proactive for personal safety and carry a firearm for protection. The 2nd Amendment of the United States Constitution guarantees that fundamental right. There are those who want to strip that primordial right from ‘We The People’. They are enemies of freedom. If you choose to carry a gun for self-defense, make sure you get proper training, the weapon and ammunition function as intended by the manufacturer, you exercise your right with utmost safety for all, it is carried legally and you know the laws that govern lawful use of force. An armed civilian must also be morally prepared for the consequences of actually deploying the firearm and using lethal force, even if correctly done within the parameters of the law. Once fired, you can never recall a bullet. Ultimately, your most important survival tool is your brain. Your most crucial weapon is your decision, made ahead of time and kept, that your will is to survive any violent encounter by all reasonable means necessary, no matter what. Refuse to be a victim.

Taking the life of another human being would be devastating and life altering – gun carriers have to live with that. On the other hand, myself and most people I know of similar mind set, would have a more difficult time with being a violent crime victim or witnessing a violent crime without the means to stop it. This is especially true if the victim is a spouse, child or friend. That reminds me of a famous saying attributed by some to Sir Edmund Burke: “The only thing necessary for the triumph of evil is that good men should do nothing.” Look closely at ‘gun violence’ statistics. The anti-gun lobby is famous for including gun suicide numbers, which are high, in gun crime statistics, which is dishonest and ginned up for political gain. If we are basing public policy on raw statistics, then ban motor vehicles, because many more people die each year in automobile crashes than as a result of any firearm.

If you are thinking about obtaining a firearm, contact Keith at Northwest Pawn & Collector Arms on Pines in Spokane Valley, Washington. He is a great guy and probably the most prolific firearms dealer in Eastern Washington. For safe gun handling and marksmanship training, I prefer Center Target Sports in Post Falls, Idaho. Their instructors are National Rifle Association certified and come from very qualified backgrounds, such as law enforcement and military service. Take a minute to thank a person in uniform for their service. While they can’t protect everyone from every risk, their efforts make our society a better place to live. This information is provided as a general guide and is not intended to be legal advice. If you need legal advice about any of the issue raised in this article call Gobel Law Office, PLLC at (509) 624-4102 today.

Be aware. Be prepared. Be vigilant. Be patriotic – God bless America!