How can you restore your right to possess firearms after being convicted of a felony or domestic violence?
Being a Spokane area Firearms Lawyer who shoots with many folks from law enforcement and military backgrounds, I am acquainted with a few people in law enforcement. As the political and legal environment becomes more hostile to law enforcement officers, it has become apparent to me that cops and armed citizens need to look outContinue reading “Gray Men & Patriots”
The power of government to move armies also requires the power to maintain roads through the desert. Travel through the regions referenced in the Old and New Testaments depended on straight paths that were made crooked by shifting sand and mountainous terrain. Thus, it took many laborers to carve out the roads and keep them clear. Today the Palestinian controlled enclave of Gaza blocks travel from Israel to Egypt.
“Take no part in the worthless deeds of evil and darkness; instead, rebuke and expose them.”
Ephesians 5: 11
Reporters Without Borders reported that more journalists have been executed in the Philippines than anywhere in the world (they started counting in the 1980s), except Iraq. This is the list so far in 2007, just for the Philippines:
12 October 2007 – Iligan City radio journalist shot in the stomach;
26 June 2007 – Radio journalist gunned down, colleague wounded in Tawi-Tawi;
25 May 2007 – Photojournalist on critical newspaper murdered;
20 April 2007 – One journalist beaten and shot dead, another shot and wounded;
11 April 2007 – Radio journalist gets four and a half years in prison for defaming legislator;
23 February 2007 – President Arroyo urged to take energetic measures to end impunity;
19 February 2007 – Newspaper editor gunned down in Mindanao, first Filipino journalist killed this year.
But executing journalists is a phenomenon that is growing around the world; e.g., a Kyrgyz reporter killed this week. The allegation is that the Uzbekistan Government is crossing borders to silence its foes in any place where perceived enemies may expose the regime’s corruption.
In the Philippines, a proposal was explored to make it easier for journalists to get “away from home permits”. Apparently, “mainstream” Philippine journalists protested, arguing that such a move takes the onus off the government to protect people from violence. In the good old USA, however, the courts have stated unequivocally that the government has no such duty. Does this surprise you?
The reality is that corrupt government factions are behind many such executions. In the Philippines, journalists have alleged that the army is cooperating with rebels, Yakuza and other criminal enterprises. In many countries, distinctions between terrorist, bandit, soldier and politician are almost indistinguishable. Armed journalists that are trained to defend freedom of the press may be the best thing since Wyatt Earp when it comes to cleaning up Dodge Cities and Tombstones around the world.
Alisher Saipov’s courage in reporting the truth is being honored posthumously, however, and such journalists deserve international respect.
By DAVID L. STERN; New York Times
Published: December 3, 2007
OSH, Kyrgyzstan — In his short career as a journalist in this Silk Road city in Kyrgyzstan’s south, Alisher Saipov gained a reputation for being driven, thorough, impassioned, brave and insatiably curious — though sometimes arrogant and abrasive. Above all, he was known for being outspoken.
Colleagues, academics, diplomats and government officials described Mr. Saipov, 26, a former contract reporter for Voice of America and a Moscow-based web site (see link) that focuses on news from Central Asia, as one of the top reporters here, if not the best.
Mr. Saipov was renowned for his scoops and his extensive network of inside contacts, ranging from Islamic extremists to foreign ministers. For visiting journalists, including those from the BBC and The New York Times, Mr. Saipov’s offices were a required stop for a pot of green tea and a debriefing on the latest intricacies of the Ferghana Valley, the ethnically diverse geographic pocket that encompasses portions of Kyrgyzstan, Uzbekistan and Tajikistan.
But Mr. Saipov achieved a different sort of notoriety on Oct. 24 when around 7 p.m., while waiting for a taxi with a friend on one of the main thoroughfares here, a gunman stepped out of the tree-lined darkness and shot him in the leg, according to news reports. When Mr. Saipov fell to the ground, the gunman fired two shots to his head.
The shooting was apparently the first contract killing of a journalist in Kyrgyzstan, a country known for its relative media freedom compared with its authoritarian neighbors, and it sent shock waves through the region and beyond. The American Embassy in Bishkek, the Kyrgyz capital, joined by the European Union and the British government, called for a thorough investigation of the “outrageous crime.” The Kyrgyz president, Kurmanbek Bakiyev, announced that he was taking personal responsibility for the inquiry.
Among many international observers and the country’s news media, primary suspicion has fallen on the Uzbek security services. Mr. Saipov, who was a Kyrgyz citizen and an ethnic Uzbek, was a well-known opponent of the government of the Uzbek president, Islam A. Karimov.
His shooting, they maintain, is evidence of the long reach of the National Security Service of Uzbekistan, or S.N.B., using its Russian initials. Uzbekistan strives to suppress all opposition voices, even those outside the country. Although no proof has emerged of any Uzbek link, proponents of this theory say that they believe the circumstantial evidence is overwhelming.
Kyrgyzstan’s ombudsman for human rights, Tursunbai Bakiruulu, says he believes firmly that the S.N.B., Uzbek’s successor to the K.G.B., ordered Mr. Saipov’s death. “Logically there is only one scenario,” he said, though he conceded that he had no evidence.
The Kyrgyz-Uzbek border is porous, and Uzbek agents operate freely in Kyrgyzstan’s section of the Ferghana Valley, numerous specialists and diplomats interviewed for this article said.
In May 2005, after Uzbek government troops brutally suppressed an uprising and political demonstration in Andijan, refugees streamed over the border into southern Kyrgyzstan.
According to witnesses, Uzbek agents in the immediate aftermath crossed the border, which is a few hours away by car, rounded up hundreds and sent them back. In mid-2006, five more political opponents to the Uzbek government who had taken refuge in Kyrgyzstan disappeared, international agencies like Human Rights Watch say, and they are feared to have been kidnapped and taken back to Uzbekistan.
Uzbekistan is scheduled to hold presidential elections on Dec. 23. President Karimov, who runs a police state governed by fear and has never held an election deemed free, is expected to glide to victory, though five other people have also announced their candidacy.
The country, many say, could experience a vicious power struggle once President Karimov, 69, departs. Unrest and a subsequent refugee crisis in Uzbekistan, which has the largest population of Central Asia’s five former Soviet states, could prove a destabilizing factor for the entire region.
Mr. Saipov commented critically on developments in Uzbekistan, and his killing, friends and analysts believe, may have been a direct result of his reporting. He was virtually alone among the Ferghana Valley press corps in writing regularly on torture in Uzbek prisons, the plight of the refugees and political unrest across the border.
“Alisher was killed because he was an Uzbek,” said Sultan Kanazarov, an independent journalist who used to work for Radio Free Europe and who said Mr. Saipov was a close friend. “He was the only one who wrote about Uzbekistan, and he never left the Ferghana Valley.”
Earlier this year, Mr. Saipov left Ferghana.ru and Voice of America to start a pan-regional Uzbek-language newspaper, Siyosat, which means politics. The weekly provided original reporting and reprints from news Web sites, and it was underwritten by a $26,500 grant from the National Endowment for Democracy, a Washington-based foundation.
Siyosat struck a visible nerve with the Uzbeks. Soon after Mr. Saipov began to publish, a public campaign began against him on Uzbekistan’s state-controlled television and Internet. One Uzbek Web site ran a piece titled “Saipov Is Traitorous Knife in the Back From Our Neighbor and Partner Kyrgyzstan.”
Mr. Saipov, in the weeks before his death, said he believed he was being trailed by Uzbek security services. He also said he had received warnings and told a number of colleagues that he had heard a rumor that Uzbek officials had placed a $10,000 bounty on his head. Colleagues say that they, too, have been followed in the past, and added that in the days before Mr. Saipov was killed, two unknown men were seen regularly around his offices.
“He said that he felt that the circle was tightening around him,” said Elmurad Jusupaliev, Mr. Saipov’s journalism teacher and a former business partner.
For the journalists, human rights workers and Uzbek opposition members living in southern Kyrgyzstan, given the brutal and public nature of Mr. Saipov’s shooting, the consensus is that he was killed to send a message to anyone interfering — or even thinking of getting involved — in Uzbek politics.
“This was not an assassination, but an execution,” said one Western diplomat working in Kyrgyzstan, who spoke on condition of anonymity given the delicacy of the issue. “It was a message saying, ‘We can get anyone, anytime, anywhere.’”
Charged With a Domestic Violence Offense. Things can often get out of control when family members are involved. We are a Spokane area criminal defense firm. If you are ever charged with Domestic Violence, there are a number of issues that usually come into play. When the police arrive, usually because someone called 911, theyContinue reading “Need Washington State Domestic Violence Lawyer in Spokane County?”
School Marshals—Training Standards—Certification—Immunity from Liability. The following discussion includes certain draft proposals that we are proposing as uniform School Marshal legislation for all the states to consider. The language is cast in terms of Washington state but provides a template that can easily be adapted to other states. The advantage of providing training programs thatContinue reading “Proposed Uniform School Marshals Legislation for Washington & Other States”
RE: OPINION LETTER RELATING TO IMPLEMENTATION OF
LAW ENFORCEMENT OFFICERS’ SAFETY ACT
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. The purpose of the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 (18 U.S.C. Sec. 926B and 926C) is to supplement active law enforcement personnel in order to deter crime and prevent terrorist activity. The federal law accomplishes this by anticipating that additional armed law enforcement personnel that have already been trained will be present within each jurisdiction as officers travel from one jurisdiction to another while on business, vacationing or for any other reason.
The Act authorizes retired officers and active police officers from outside of each jurisdiction to carry a concealed firearm within each and every jurisdiction of the United States; thus, increasing the likelihood that an armed officer will be present if deadly force is presented on the roads or in any other location where the traveling officer from outside a given jurisdiction may be. The retired officer must qualify annually per the standards that officers are required to meet for firearms proficiency within the agency from which he or she retired. For a retired officer to carry a weapon in all fifty states, the federal statute requires:
“… a certification issued by the State in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm.”
The LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 is an aid to law enforcement and the public that costs the state or the federal government very little because the training has already been provided at the state level and each retired officer essentially becomes a volunteer who must pay the cost of maintaining his/her qualifications at the state and/or local level.
RCW 36.28A.090 reads in part:
Firearms certificates for qualified retired law enforcement officers.
(1) The purpose of this section is to establish a process for issuing firearms certificates to residents of Washington who are qualified retired law enforcement officers for the purpose of satisfying the certification requirements contained in the federal law enforcement officers safety act of 2004 (118 Stat. 865; 18 U.S.C. Sec. 926B and 926C).
(2) The Washington association of sheriffs and police chiefs shall develop a firearms certificate form to be used by local law enforcement agencies when issuing firearms certificates to retired law enforcement officers under this section.
(3) A retired law enforcement officer who is a resident of Washington may apply for a firearms certificate with a local law enforcement agency. The local law enforcement agency may issue the firearms certificate to a retired law enforcement officer if the officer:
(a) Has been qualified or otherwise found to meet the standards established by the criminal justice training commission for firearms qualifications for active law enforcement officers in the state; and…
A. Does the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 (hereinafter the Act) provide an opportunity for citizens and law enforcement agencies across the United States to acquire additional security at little or no additional cost to state, local and federal governments in taxpayer funds and potential liability?
B. Does qualifying and certification of a retired officer incur more potential liability than qualifying active police officers?
C. Is there a reasonable basis not to implement the provisions of state and federal law outlined above based on potential liability or any other issues?
A well known police organization has actively advocated that police agencies in Washington State not certify retired officers under RCW 36.28A.090 because of alleged liability issues. As a general rule licensing and permitting does not incur liability absent exceptional circumstances or a so-called “special relationship” with a person or group who is adversely impacted by improper certification at a level below that of the policy-making decision to develop such a process. Washington courts apply the “public duty doctrine” in order to determine whether a decision is at a policy-making level and therefore immune from liability claims.
Even at the “mechanical” level where a police firearms instructor determines whether official standards have been met, there needs to be a specific individual or group relying on the testing officials determination (as opposed to the public at-large in order to create a potential for liability. Since no such relationship exists when an officer or retired officer qualifies, the alleged potential for liability does not exist. Those advocating against certification of retired officers need to answer two questions:
1. Is the basis of the alleged potential for liability based on ageism?
2. Where is the evidence of any liability against local law enforcement agencies based on certification that an officer has qualified under state standards for firearms proficiency?
Most jurisdictions, including Washington State, already provide for retired officers to qualify and continue carrying within the state. This would be similar to issuing a concealed carry permit. Thus, the question can be formulated- Where again is the evidence of any agency incurring liability by issuing concealed carry permits or by any qualifying retired officers to carry a weapon within the State of Washington and why should carrying outside the state increase the potential for such alleged liability?
The answer to all of the questions raised above is that the potential for increased liability is virtually non-existent. The true rationale behind the position that some groups are taking is a political agenda that seeks to maintain the myth that armed private individuals cannot deter crime or protect themselves or the public; i.e., an anti-gun agenda.
Where there is no “special relationship” creating a duty to a class of people that have relied on a permit, potential liability does not exist. The courts in Washington look to the manner and extent of contact between the government official and the member of the public in order to decide whether such a special relationship exists. The courts also look to how explicit any assurance is made to the specific class of persons that may rely on a permit, license or certification. J& B DEV. CO. V. KING COUNTY, 100 WN.2D 299, 669 P.2D 468 (1983).
In J & B Development, the court held that a breach of a governmental duty owed only to the public as a whole cannot be the basis for a cause of action. See also RCW 4.96.010. Prior to J & B DEVELOPMENT, the Washington legislature had abolished most governmental immunity. In J & B Development, a building inspector was held to have a duty to the builder based on the special relationship created by issuance of a negligent building permit. The governmental entity breached a duty owed to the plaintiff as an individual rather than to the public at large.
The Public Duty Doctrine provides an exception to the general rule in Washington. The general rule is that the state and its subdivisions can be sued on any basis for which a private citizen may be sued. See RCW 4.96.010. Despite the waiver of sovereign immunity contained in RCW 4.96.010, the Public Duty Doctrine requires that a claimant suing a governmental agency or municipality must establish the breach of a duty owed by a governmental entity specifically to an individual or group making a claim. See WASHINGTON STATE’S 45-YEAR EXPERIMENT IN GOVERNMENTAL LIABILITY, by Michael Tardif & Rob McKenna. Seattle University Law Review, Vol. 29, Fall 2005.
The act of testing and issuing a certificate is in the nature of a “ministerial” or “operational” function. Nevertheless, the fact that the Washington State Legislature has provided that “…The qualification required under [subsection] (3)(a) of this section may be performed by the local law enforcement agency or by an individual or entity certified to provide firearms training” creates a discretionary, policy-making characteristic to an agency’s certification under state law. See RCW 36.28A.090. Thus, the discretion involved in creating a local certification process decision brings the decision under the immunity provided by the Public Duty Doctrine.
The fact that 18 USC 926(c) and the above referenced state law are promulgated for broad public safety purposes and not for the purpose of creating a duty to specific class eliminates liability for the decision. Therefore there is no valid argument that potential liability exists by certifying that retired officers have met the standards of the Criminal Justice training Commission. On the other hand, the benefit to the national public may be immense. The benefit to the people of Washington State accrues as armed police officers from other states travel in Washington; i.e., the benefit is derived from reciprocation as sister states implement the Act.
It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the one injured. E. McQuillin, SUPRA. To be actionable, the duty owed must focus on the one injured, not on the public at large. To sustain an action against an individual, it is necessary to determine whether one is under a duty to a claimant as opposed to the general public. Similarly, to sustain an action against a municipality it is necessary to decide whether a municipality is under a general duty to a nebulous public or whether that duty has focused on the claimant.
J & B Development, supra.
The rationale of the “public duty doctrine” has historically been (1) prevention of excessive governmental liability and (2) the need to avoid hindering the governing process. Nevertheless, in J & B Development, the court stated:
“…the “public duty doctrine” has a third logical application in tort litigation. A duty to the public in general is usually considered a duty to no one in particular (I.E., the “public duty doctrine”). When considered in combination with the “special relationship” rule, however, it becomes a mechanism for focusing upon whether a duty is actually owed an individual claimant rather than the public at large. The “special relationship” rule is in fact the focusing tool. Assum(ing) a county voting registrar has a duty to refrain from registering nonresidents… it would be difficult, if not impossible, for an individual citizen to recover in tort against the County for the negligent violation of that duty.”
No liability is presented where the act, omission, or decision to certify involves a basic governmental policy, program, or objective. The act of a county or municipality exercising discretion explicitly provided by state law requires the exercise of a basic policy evaluation, judgment, and expertise on the part of the agency. Said discretion is essential to the realization of federal and Washington state policy; and is within the proper authority and duty of law enforcement agencies.
The act of an agent of a governmental entity shown to have been done in an arbitrary and capricious manner, or decided upon without considering the facts involved, may not be classified as a discretionary function and is not entitled to exemption from liability.
The fact that the state legislature has provided authority via RCW 36.28A.090 for local municipalities to implement federal law for the benefit of the public at-large raises an issue as to whether liability can exist where a certificate is issued in an arbitrary and capricious manner and foreseeable harm results. In the unlikely event that a court identifies a duty predicated on the requisite special relationship, any potential liability would be no greater than that which presently exists by certifying active police officers for duty.
“The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.” See EVANGELICAL UNITED BRETHREN CHURCH V. STATE, 67 Wn.2d 246, 253, 407 P.2d 440 (1965) (it is necessary to determine where, in the governmental process orthodox tort liability stops and the act of governing begins).
According to EVANGELICAL CHURCH, at page 254:
“Liability cannot be imposed when condemnation of the acts or omissions relied upon necessarily brings into question the propriety of governmental objectives or programs or the decision of one who, with the authority to do so, determined that the acts or omissions involved should occur or that the risk which eventuated should be encountered for the advancement of governmental objectives.”
EVANGELICAL CHURCH at page 255 states four preliminary questions that are relevant to determining whether an act was a discretionary governmental process:
(1)“Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?
(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?”
Therefore, in view of the federal and state mandates that confer discretionary governmental authority to implement certification, municipal law enforcement agencies are immune from liability. The arguments that are advanced related to potential liability are either disguised prejudice against retired officers (based on age) or are based on biases against private citizens being armed. After all, the rationale of the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 is that armed citizens can make a difference, a rationale that runs directly contrary to the “consensus” that citizens with weapons are more of a danger to themselves or others than to the bad guys.
To be entitled to immunity, the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The author’s opinion herein can be particularly relied on by Washington State municipalities and law enforcement agencies due to the fact that the Legislature clearly made the decision to implement the certification process a local determination within the discretion of municipal governments.
It goes without saying that refusal to clearly look at the benefits set forth herein may frustrate an inexpensive public safety initiative with the potential for resulting loss of life. Such irresponsible public administration would raise the specter of real political liability in light of the potential for mass shootings and future terrorist acts that predictably may involve small arms.
See also a MESSAGE from Durango, Colorado’s Police Chaplain.
On December 1st at Cabela’s in Post Falls, Idaho, we had David Howlett open up our thinking to how SIRT laser technology makes force-on-force Reality Based Training simple and effective. We now have a link to Next Level Training at which you can purchase a SIRT pistol with a 10% discount and a commission that supports theContinue reading “Criminal Defense Lawyers, Law Enforcement & Use of Force Expert at Cabela’s in Post Falls”
Gail Gerlach Acquitted of First Degree Manslaughter Gerlach’s Acquittal Sends Strong Message on self-defense Criminal defense lawyers in Spokane paid close attention when Gail Gerlach was acquitted of first-degree manslaughter charges. Defense lawyers, Richard Lee and David Stevens, sent a clear message to prosecutors when the Spokane-area resident was acquitted of First Degree Manslaughter for shootingContinue reading “Criminal Defense Team Sends Message to Spokane County”
Shooting 1971 Summary. The following is a summary of information presented by one of our members at our monthly Action Training Group meeting in July. The purpose of the presentation in Spokane Valley was to initiate discussion about self-defense issues so we can start creating Reality Based scenarios that develop situational awareness for armed citizens,Continue reading “Use of Deadly Force: the Unarmed Assailant”