Gray Men & Patriots

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”

Terror at Beslan; Our Schools Are Targeted for Terror Attacks

http://markknapp.multiply…_Guns_on_Campus

People need to make the decision to prepare for deadly force now, not when the attack precipitates. By then, it will be too late.”

Read Israel’s answer to school violence.

Schools and school buses are probably under surveillance by terrorists and being “pinged” in order to measure reactions and identify security measures.

Every active shooter attack in a school, mall or other public place provides data for terrorists who study news reports and publicly available studies conducted by security experts. Beslan was a slaughter of school children in Russia that was probably a dress rehearsal for the rape, slaughter and torture of young school children in the U.S. The attacks on innocent people conducted by Al Qaeda affiliates, like al AShabaab’s attack on the Westgate Mall in Nairobi, Kenya may be harbingers of how future operations in the U.S. might look.

The school attack in Beslan has been carefully analyzed in John Giduck’s study. Entitled Terror at Beslan, Giduck’s warnings detail the importance, but also the pitfalls, when armed citizens react to terrorist attacks. Both the attack at Beslan and the Westgate Mall attack demonstrate how helpless governments become in the face of well-armed terrorists working in teams.

Beslan came under attack from Chechen terrorists that had already made up their minds not to negotiate and to inflict the maximum amount of pain on Russian school children by unleashing torture, death and pysychological damage to the survivors and the Russian people. The terrorists demanded opportunities to negotiate. Such demands were only issued in order to deceive the Russian authorities into providing more time for the terrorists to wire school buildings with bombs.

Security personnel and operatives on the side of terrorist groups study every aspect of how the authorities and media respond to such attacks. This includes reaction time, vulnerabilities, follow up, etc. John Giduck was in Russia at the time the attack on the Beslan school occurred and was able to work closely with Russian security forces during the immediate aftermath of the attack. The book also got the author banned from Russia because of his honest criticism of what the Russian security forces did wrong. Eleven men from Russia’s elite Alpha and Vympel Counter Terror units lost their lives saving 1,181 hostages- 777 of them children.

The attack began on Sept. 1, 2004. The school was destroyed in an explosion and 334 were killed, 186 of the dead were children and many that survived witnessed horror that will scar them forever. Lt. Col. Dave Grossman has long warned that it COULD happen here, there are things you and I can do to prevent such attacks and it could be YOUR child’s life that you save.

John Giduck suggests what we can do as parents and as concerned citizens that are not in the law enforcement or intelligence communities. Mr. Giduck is a trial lawyer who also holds the highest level certification in Homeland Security. He works with a non-profit NGO, the Archangel Group, consulting with law enforcement and other agencies in the field of anti-terrorist training and has spent considerable time gaining first hand expertise on Russia’s security operations.

Giduck’s recognition of the role armed citizens can play in responding to terrorist activities should silence very anti-gun idealogue. After the events in Nairobi’s Westgate Mall attack, refusing to acknowlege the need for armed security in our schools is tantamount to giving aid and comfort to terrorists! Even an Interpol chief has now publicly proposed that armed citizens are one of the few options available to stop terrorist attacks like the one at the Westgate Mall in Nairobi, Kenya.

Almost every attack has been in a “gun-free” zone. Thus, the murderer knows that it is unlikely any of his or her victims will be armed. At the present time, the Washington Administrative Code, promulgated by unelected bureaucrats, prohibits weapons on campus in Washington. It is questionable whether the WAC regulations have any legal effect since they conflict with Washington State’s firearms preemption law that prohibits any local municipal gun laws more restrictive than the restrictions in the state RCWs.

Some liberal lawyers and anti-gunners in Olympia want to get a new law passed to “clarify” the situation. No one wants to be a test case and you could get expelled from your state university for carrying. Each student in a state college or university has to make an informed decision as to whether to exercise his or her right to carry on campus with a valid carry license pursuant to our state laws.

It is your life and your education that is at stake. There is no right to carry at a high school or elementary school with or without a license to carry, at this time. But write to your representatives and demand that something be done like what is starting to take place in Oregon and other states that have empowered certain armed volunteers to carry in schools.
Most restrictions only restrict law- abiding people and not criminals, psychopaths and terrorists. If a disturbed person would gun down a defenseless child, that same person will pay no attention to a law restricting guns.

In fact, the gun-free status of the institution or facility makes it a target for the psychopathic killer.

The individuals in our colleges and universities that need to be the first line of defense>, however, are the students, instructors and staff with either concealed carry permits or specialized training.

Elementary, high school and middle school personnel may need a new kind of training with a special license indicating some advanced tactical training for active-shooter situations. Most of the security guards that do provide a presence at such places are unarmed security guards, however, and the expense of hiring enough armed security is prohibitive.

Revenge or anything like vigilante action is the worst possible thing anyone can do and advocating or engaging in retaliation is criminal conduct.

True Followers of Christ will not engage in murdering innocent people but many Americans may be carried away with the concept of imprisoning or taking revenge against Islamic people in the same way as Japanese were interned during WW II.

The same “liberals” that already want to restrict our gun rights and disarm honest people may be holding the reins of power if and when the country faces the chaos of a WMD, Mumbai-style tactical teams terrorizing our communities or some other disaster.

On the other hand, the jihadist believes that in a few generations a Caliphate will force you to submit (that is what Islam means- subjection) to its religious laws.

Many of the U.S. authorities are presently so eager to accomodate Islamicists (and are so intimidated by CAIR’s threats of legal action) that Christianity is being denigrated while Islam is celebrated in the name of diversity. There are many examples but sufficient to state for now that these are the first steps toward submission.

Self-defense and defense of others when attacked is not vigilantiism.

Make sure you recognize your school bus drivers and ask your local school district to provide for some staff to become trained and certified to carry weapons.

We need to take precautions similar to the Israeli schools and schools in other countries like Thailand where the staff is armed and ready for jihad. Meanwhile get your permit and learn how to shoot.

Some of our neighbors in Federal Way are preparing to provide opportunities for teachers and other school professionals to learn to work tactically so that they are trained when the authorization to carry in our local schools finally comes. It does not take an act of the Congess or the legislature. Federal and state lawmakers have left it up to local school boards!

Martial Arts Shooting Seminar in Coeur d’Alene Area

I am signed up for the FIREARMS SHOOTING SEMINAR presented by Soke Jeff Hall & Mike Mackin at Fernan Rod & Gun Club near Coeur d’Alene, Idaho.. Hōjutsu-Ryu is a martial arts discipline involving combat firearms training at a very effective level. I talked to Mike this week and there are still slots available forContinue reading “Martial Arts Shooting Seminar in Coeur d’Alene Area”

The Time to Stop the Carnage is Now; Enforcing Washington State’s Firearms Preemption Law

Advocates for Change. The Law Office of Mark Knapp PLLC has persuaded many municipalities to make municipal laws and policies compliant with Washington State’s Firearms Preemption law.  Thus, state, municipal, and private institutions are discussing whether to change their policies. There is increasing recognition that armed citizens can help stop random violence. Throughout these institutions thereContinue reading “The Time to Stop the Carnage is Now; Enforcing Washington State’s Firearms Preemption Law”

Spokane Criminal Defense Lawyer

We have been representing clients in criminal defense matters across Washington state for almost 30 years. These include many domestic violence cases. We have also been representing clients in Spokane cases over the course of many years.  So why should you retain the Law Office of Mark Knapp PLLC to represent you? Mark S. Knapp Initial Consultation. A criminal defense lawyer,Continue reading “Spokane Criminal Defense Lawyer”

Washington State Firearms Attorney In Spokane

Our law practice focuses on firearms related issues in Washington state. We were in Federal Way for 25 years. The Federal Way Mirror asked me to write a column in the local newspaper. The Mirror published the Firearms Lawyer column for four years. The column was about local law enforcement and current legal issues of concern toContinue reading “Washington State Firearms Attorney In Spokane”

Implementing the Law Enforcement Officers’ Safety Act

RE: OPINION LETTER RELATING TO IMPLEMENTATION OF
LAW ENFORCEMENT OFFICERS’ SAFETY ACT

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. 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.”

Emphasis added.

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…

II. ISSUES

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?

III. ANALYSIS

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?”

IV. CONCLUSION

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.

Criminal Defense Team Sends Message to Spokane County

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”

Armed Defense Training Association

Gun News – ADTA Article The Washington Arms Collectors featured the Armed Defense Training Association in the October, 2016 edition of the GunNews.  We asked the author, Ed Streit, the current ADTA President and a founding member of the citizen self-defense group, to send us the article.  The Action Training Group, Inc. in Eastern Washington andContinue reading “Armed Defense Training Association”

The Beef in Your Marketing Arsenal?

The LAW OFFICE OF MARK KNAPP provides NFA Gun Trusts, protects the gun rights of individuals and represents those who are charged with crimes in the State of Washington; i.e., criminal defense work. We have also been very involved in forming and promoting the Action Training Group in North Idaho and the greater Spokane area.Continue reading “The Beef in Your Marketing Arsenal?”