JAG Lawyers and the Rule of Law

Every year I attend a seminar presented by the 6th JAG LSO in Seattle, Washington. In years past, the Army lawyers have discussed the procedures for dealing with WMD incidents on U.S. home soil and the chain of command during national emergencies. One component of the legal instruction is pure gold. The subject matter is broadly classified as Rule of Law– a big concept for JAG Corps lawyers, as it should be for all of us.

It may not be immediately obvious but the commitment to rule of law is what stabilizes a nation. The ability to honor contracts, respect minorities and manage conflict is what makes the difference between prosperous and peaceful societies and societies that descend into chaos. It just seems like prosperity, technological achievement and military might is the source of American power.Continue reading “JAG Lawyers and the Rule of Law”

Does Your Business Have a Threat Response Plan?

THREAT RESPONSE PLANS FOR YOUR BUSINESS

The following threat response strategies are focused on preventing violence in workplace settings, especially in areas open to the public and when it may be cost prohibitive for your business to retain professional security officers.

The first consideration is to identify any members of your organization that have experience as police officers. The rules of engagement are quite different for law enforcement than for military but those with tactical military training should also be identified.

Training can be acquired fairly quickly but a lack of good judgment about armed self-defense can create legal liability and a bad image for your church or business. Good judgment usually involves experience but the Lethal Force Institute and Firearms Academy of Seattle are both good places for your personnel to gain some training regardless of previous levels of experience.

The owner(s) of a business and those authorized by the owners can carry in a church or business without a CPL. Keep in mind, however, that if you are in a vehicle or away from your premises you need a CPL unless you carry openly which we are only recommending for uniformed Law Enforcement Officers (LEOs).

You do not want to deter visitors from coming onto your premises while appropriately armed. That visitor may save someone’s life. Predatory visitors will not leave their weapons at home just because they see a sign that bans weapons on your premises.

You are expected to take reasonable precautions to protect employees and invitees that enter your premises from foreseeable threats. Workplace violence has become more foreseeable and there is already some precedent for law suits proceeding against institutions like Virginia Tech.

In Washington, police officers are permitted to work as armed security when they are not on regular duty. Keep in mind that in many of the mass shootings that have occurred, uniformed police officers have been targeted first. The presence of a uniformed officer is a good thing but there needs to be one or more armed volunteers in plain clothes backing up the officer(s).

Security guards need to be licensed and properly supervised so do not take any steps indicating that any of your volunteers are security guards without undergoing the appropriate legal procedures. Nevertheless, management should discuss appropriate threat responses and to create threat response plans involving key employees. You may want to identify some armed volunteers that will be going about their normal activities but in such a way that they are prepared to implement a Threat Response Plan (TRP) if a threat materializes.

Designate areas of responsibility for various volunteers. Working in pairs makes sense. If members are identified as security personal and/or wear clothing that indicates certain members are official security personnel, you may be in violation of the law. Additionally, this creates more potential for liability if an incident occurs in which someone is injured by the commission of a negligent act or the failure to take appropriate action.

Once we undertake a special responsibility for others; e.g., by posting security guards or inducing members of the public safe to believe they are being protected, the person protected begins to rely on the perceived “promise” that he or she will be safe. Such reliance raises the potential for legal liabilities.

Take the time to study surveillance detection. Many times the mere fact that terrorists that are observing your building(s) realize that their surveillance teams are being observed will prevent an attack from developing.

You should have some key personnel at every door and in the parking lot that know what to look for. Be observant of people using cell phones to photograph your premises. Make sure that key personnel know about Domestic Violence Protection Orders that have been obtained by employees, stalking situations and provide enough information about any other threats that your key personnel know what to look for and how and to whom unusual observations should be reported.

1. Have an individual with a cell phone prepared to get out of the immediate area and call the police immediately. Only one person should talk to the police. Conflicting information is not helpful for 911 dispatchers.

2. Give the location in the building where the disturbance is occurring. Do not tell law enforcement that there are armed volunteers present if the disturbance is not one that presents the threat of deadly force. If the first responders think that you have armed civilians involved the police may not come in until SWAT teams arrive which takes a great deal of time in many instances.

3. You need an exit plan for your employees. They need to know they are to follow instructions from leaders. Visitors will follow the leaders and employees. These leaders may be women or men. They need to know a place to go outside the building where the threat is developing. In the case of a larger organization, it may be another building that can be locked. Start walking people out- do not run. Tell them, “follow the leader, walk don’t run.”

If dealing with an armed troublemaker, armed volunteers should be using cover but also moving quickly to the active shooter. Stay in control and walk purposefully. Keep the possibility of “outriders” in mind and protect your weapon from well meaning bystanders that may try to grab the weapon from you!

Give commands forcefully but calmly. If you are armed, you should avoid any physical contact that may lead to losing control of your weapon. If you are confronted with disparity of force (more than one assailant or a deadly weapon) do what is appropriate.

Remember the 21 ft rule. Stay at safe distance and wait for law enforcement. If your gun is out (which it normally would be if you are confronted with a contact weapon) holster your weapon before the police arrive- but stay prepared. You should have a good distance between yourself (the armed volunteer) and the perpetrator. Do not attempt to handcuff or make any physical contact with an aggressor. You are not trained to do that. If there is even a possibility that the troublemaker is armed then stay behind cover at all times if possible.

1. Holler give commands, to those around you, “Get on the floor. Do not run, get down.”

2. Remember that bullets do not stop when they hit a perpetrator (or a wall). By kneeling or shooting from close to the floor your rounds travel upward, thus minimizing the chance of stray rounds hitting innocent bystanders.

3. Those willing to take the shooter down should rush the shooter and keep coming until he is down. Push people down or out of the way, even run over children while shouting commands, “Get down, do not run, get on the floor!”

4. Those who choose to fight should focus on the weapon not the person. Control the weapon. After the active shooter has been subdued, march everyone out to a safe place in the manner described above. Someone needs to call for medical assistance at this point.

5. When LEOs arrive all weapons should already be put away if possible. Make sure not to pick up the shooter’s weapon but keep your foot on it or secure it if there is a chance someone may pick it up. Do what the police tell you to do. Identify the wrongdoer to the police and make sure the police know that he had to be stopped in order to prevent innocent people from becoming victims. Point out evidence such as spent casings, weapons, etc. but do not provide details without a lawyer present.

Note well: You will be experiencing an enormous rush of adrenaline but resist the urge to talk too much and make sure that you are not holding a weapon or doing anything when the police arrive that might cause them to regard you as a threat. That means to drop your gun on the floor without hesitation when commanded to do so.

Please do not rely on this short set of suggestions as legal advice. Every situation is governed upon very specific facts. Get training in the laws of self-defense and know the laws of your jurisdiction. Talk to local police authorities and ask them to discuss your threat response plan with you. You alone are responsible for your actions, especially if you are ever faced with protecting innocent members of the public from the threat of deadly force.

If anything herein is helpful, individuals, churches and businesses are encouraged to reproduce this article without permission. We encourage you to submit your ideas to knapp.m@comcast.net so that we can augment or correct what we have provided so far. This article is a work in progress.

Reality-Based Training is Practical for Police and Armed Citizens

Law enforcement agencies require “qualification” tests at least one time each year.

Firearms qualification ensures that officers can make a certain number of holes in a paper target within a given amount of time. Almost every department requires additional tests of proficiency for its officers.

At the Federal Way Police Department, four training sessions occur each year. This Federal Way requirement is now becoming the regional standard. Almost every agency in our region meets the regional standard and some agencies may exceed this standard by shooting six times a year.Continue reading “Reality-Based Training is Practical for Police and Armed Citizens”

Nationwide Concealed Carry for Retired Law Enforcement in Washington State

I. PURPOSE

The following opinion answers questions related to questions raised by the WASPC as to whether a municipal law enforcement agency exposes itself to additional liability by certifying retired law enforcement officers as having met Criminal Justice Training Commission standards for firearms qualification. Continue reading “Nationwide Concealed Carry for Retired Law Enforcement in Washington State”

Seattle a Sanctuary for Undocumented Criminals

Seattle is not exactly a cowboy town but a little like a rodeo.

Whether its marching in a “PRIDE” parade with your weapon in plain view or riding your Harley to Sturgis with the rest of the Iron Pigs, we all have our point of view.

Rebecca Griego also had a point of view. She wanted to be safe from a man that was stalking her. She obtained a Domestic Violence Protection Order. Nevertheless, she was murdered by a man that was known to be stalking her for a long time in Seattle:Continue reading “Seattle a Sanctuary for Undocumented Criminals”

Surveillance & Disaster Preparedness in Federal Way

I just completed three days in a Surveillance Detection Training class. The Department of Homeland Security (DHS) provides some very valuable training in many areas related to protecting your home, community and critical infrastructure such as utilities and industrial facilities.

The class was primarily attended by folks that supervise security personnel. You may wonder why a firearms lawyer participated in surveillance exercises with professional operators responsible for guarding some of the most critical resources all over our state.Continue reading “Surveillance & Disaster Preparedness in Federal Way”

NFA Trusts Available for Washington Gun Owners

Many gun owners are interested in holding certain items that are restricted under the National Firearms Act. There are several advantages in using revocable trusts to hold weapons and other components that come under the purview of Title II of the NFA.Continue reading “NFA Trusts Available for Washington Gun Owners”

Can the UN Repeal Your Washington State Gun Rights?

Medellín v Texas is a landmark that stands for freedom in the United States.

See United States

In recent years, some members of the U.S. Supreme Court have made attempts to meld U.S. law with foreign law. International norms are apparently a new prism through which U.S. Constitutional law should be interpreted, according to some justices.

For example, in criticizing the Court’s own previous decision upholding state laws against consensual sodomy, the Court stated:Continue reading “Can the UN Repeal Your Washington State Gun Rights?”

Summary of Second Amendment Brief

The SAF brief is especially important because Justice Scalia’s majority opinion in DC v Heller drew on many sources referenced in the following brief.

The Second Amendment Foundation (“SAF”), a tax exempt organization under § 501(c)(3) of the I.R.C., is a non-profit educational foundation incorporated in August 1974 under the laws of the State of Washington.

SAF seeks to preserve the effectiveness of the Second Amendment through educational and legal action programs. SAF has 650,000 members and supporters residing in every state of the Union.
♦ ———————————
The language, grammar, and history of the Amendment show both that its protection is not limited to militia related activities, and that the protected right does extend to having arms for self defense against violent criminals.
♦ ———————————

Continue reading “Summary of Second Amendment Brief”

Plan to Ban Guns in Seattle, Washington

Seattle Mayor Greg Nickels recently announced a plan to ban guns at all city facilities, including parks, Seattle Center and community centers. He was already kicking against the restrictions of Washington’s state preemption law- a state statute that absolutely restricts the regulatory authority of local governments when it comes to almost everything pertaining to firearms. The legislature’s rationale was to make sure that checkerboard laws do not make gun ownership and sales impracticable on a jursidiction by jurisdiction basis.

A man with a Concealed Pistol License injured two people in a shooting at the Northwest Folklife Festival at Seattle Center. Apparently there was some kind of scuffle, possibly occurring when someone decided to grab his weapon because of concerns about safety (something that should have been dealt with by the police- not self help- if the concern was well-founded). The incident became a triggering event for the Mayor to hold a news conference with Police Chief Gil Kerlikowske (also an advocate of further gun controls, Chief Kerlikowske is known around our area as the chief that let his weapon get stolen from his unlocked vehicle). Mayor Nickels declared “Our parks, our community centers and our public events are safer without guns.”

The executive order, which does not require City Council approval, will apply even to citizens with a concealed-weapon permit.

Violators will be considered trespassers and asked to leave city property, but the city does not have authority to impose fines or jail time (due to the above referenced preemption statute:

RCW 9.41.290
State preemption.

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Many state legislators are asking the state Attorney General’s Office to issue an opinion as to the Mayor’s announcement. The order directs city departments to report back to Nickels within thirty days with a plan to implement the policy, so the state AG’s office is reluctant to plunge into the fray where restrictions are contemplated but not actually imposed at this time.

According to one local news article, Nickels stated the city will start by posting signs in city buildings such as City Hall:

The mayor said he hopes the city will not have to require pat-downs or metal detectors in city buildings, but suggested those measures as a possibility for festival organizers of events such as Bumbershoot at Seattle Center.

“I would not be surprised if there is a challenge to our authority on this,” Nickels said. He said a recent lawsuit involving the city of Sequim may give him authority to ban concealed weapons on city property.

The Sequim case involved gun show operators that sued the City of Sequim for interference with contractual relations when the City required that the premises (the venue for the gunshow was owned by the City) would be restricted to gun sales by dealers only. The court held that where the City was acting in a capacity similar to a private business, imposition of some restriction on gun sales did not violate RCW 9.41.290.

See Pacific Northwest Shooting Park Association v City of Sequim, 158 Wash.2d 342 (2006).

Many Washington localities have already been doing what Mayor Nickels wants to do. Cities like Federal Way have simply been violating the state preemption law without advertising it. The Mayor of Seattle thinks he can throw around enough weight to make the legislature cave-in to his fiat. The Washington State legislature is so heavily Democrat that it often seems impossible to block most of the Demsocratic majorities wishes.

So far, there have been enough Democrats from Eastern Washington and Republican stalwarts to hold the line on gun laws. Those “blue dog” Dem and GOP lawmakers must feel like the the boy with his thumb holding back a flood of firearms restrictions, but every year they manage to keep a number of laws (like gun show restrictions) from getting reported out of committee.

It is going to be interesting to see how the U.S. Supreme Court’s recent decision in DC v Heller will impact the lawmakers in state capitals around the country. Already cities in Illinois and other states are amending their laws. Morton Grove, Illinois, for instance, is busy modifying its longstanding restrictions. If a future Court is composed of justices like Breyer, Souter, Ginsburg, Stevens and Kennedy the issues may be relitigated so the upcoming presidential election is critical!

The difference between Constiturional strict constructionists and those that worship at the altar of “the Living Constitution” is that conservatives obey judge-made laws even when we do not agree with them. Many of the media hacks have been denouncing DC v Heller as judical activism and Washington, DC announced that it will register revolvers but not semi-autos! To call such conduct passive-aggressive behavior is an understatement. It is more like lawlessness on the part of the authorities in Washington, DC. It is no wonder there is so much crime on the streets. When the powers that be are not setting criminals loose or spending our tax dollars to promote some new social lunacy, they are busy finding ways to prevent us from effectively defending ourselves.

By the way, people in the inner-cities are most often the victims of violence and are often afraid to testify in court. For such folks (like the citizens of Washington, DC), the issue of defending one’s home and family is not an academic exercise in pettifoggery and parsing legal hairs. Not with gangs of drug dealers ruling the streets.

In order to make such claims, the “newspapers of record” claim that it is settled Constitutional doctrine that the Second Amendment only protects state militias. If you said such a thing to James Madison, Thomas Jefferson or John Adams they would think you had lost your mind! So much for objectivity.

We need to start registering journalists; but just in the big cities, because that is where all the major journalistic crimes are being fomented. We can start with NYC and then move to Chicago, Washington, DC and San Francisco.

Every registered journalist will be required to keep a key-lock on his or her keyboard. If one of these journalists tries to defend herself in writing by calling me (or anyone like me) a right-wing fanatic, ignorant redneck or lawyer affiliated with the religious right, the feds should revoke his/her license and prosecute for brandishing an automatically-keyed writing utensil with intent to intimidate.

The First Amendment balancing test will apply, of course. I am not in favor of chilling freedom of speech!