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”

Why Armed Citizens Are Critical in the Next War

The recent war in which Azerbaijan quickly defeated Armenia is the first war to demonstrate how unmanned weapons and electronic surveillance are now a critical factor in conflicts involving smaller states and/or irregular forces.  In this recent war, the Turkish-made BAYRAKTAR TB2 Unmanned Air Combat Vehicle (UCAV) and the Israeli-made HAROP Loitering Munition (LM) dominatedContinue reading “Why Armed Citizens Are Critical in the Next War”

Jihad Swarming & Counter-Terrorist Tactics JV

The manner in which societies organize for warfare has always been dependent on a number of interrelated factors. Technology is an important factor but there are many instances where societies that are behind in the technology of warfare or even behind in industrial strength and other economic factors have been able to become better organized than their opponents. Japan, for example, created the first successful carrier groups and managed to do this virtually overnight in the years before Pearl Harbor. At Pearl Harbor the Japanese executed tactics gleaned from systematic study of the British attack on Taranto that destroyed a major portion of the Italian Navy.

Just prior to WW II, theorists like Liddell Hart advocated in favor of integrating fast moving armored vehicles with smaller infantry units and air cover. The only authorities in a position to follow Hart’s innovative doctrine that were actually listening were members of the German High Command. The German execution of the lightning-fast tactics that the world came to know as Blitzkrieg overran France’s “state of the art” defenses in a matter of a few days with a loss of German lives that was almost nil!

The ability of the U.S. to mobilize and organize a civilian industrial base in order to convert to the building of carriers and planes and other military armament was one important factor that turned the tables on the Japanese and the Germans.

Hitler attempted to personally manage and direct forces that had been effectively trained to proceed with a great deal of rapid decision making at the operational level. Hitler’s seriously flawed military logic in overriding the advice of his generals and consigning Gen. Paulus’ Sixth Army to utter destruction led to its defeat on the Eastern Front.

Over time, battlefields, as the world historically has perceived battlefields to exist, have become almost a thing of the past. During the Napoleonic Wars, hundreds of thousands of men were formed into massed ranks which presented solid boxes at which their opponents would fire. Soldiers on both sides were ordered to fire into massed ranks of the enemy, usually without taking aim.

The field of battle was filled with black powder smoke and cannon balls would skip across the open ground, often removing heads and arms and legs as the iron balls bounded through rows of soldiers lined up like bowling pins.

The American Civil War and WW I caused great loss of life because both sides had such accurate rifles, machine guns and artillery that the men were pinned down in deadly trench warfare. The certainty of death by exposing men to such accurate long range fire initiated a search for new battlefield doctrine that would avoid the drawn out carnage and attrition of the trenches.

By WW II, the German High Command’s innovative mix of tanks, armored vehicles and planes dictated a new kind of warfare that depended on speed and initiative rather than masses of men. The other great powers had greater resources in terms of weapons and by almost every other manner of reckoning. The Germans, nevertheless, had developed a process of planning, innovating and testing various plans and tactics involving new technologies that other leaders only vaguely understood until the German onslaught demonstrated to the world what the English historian, Basil Liddell Hart, had been talking about for so many years; i.e., decentralized coordination between fast moving infantry, mechanized troops and tactical air support.

By the time of the first Gulf War, the U.S. was able to detect and destroy Iraqi armor so effectively that enemy troops just gave up and walked into the desert. At the present time, there is no enemy in the world that can challenge the U.S. on the high seas, in the air or on land. Our forces are trained, organized and equipped in ways that no other nation can match.

This situation prevails as a result of GPS, satellite reconnaissance, networked communications, along with other technogies that make it possible for planners located anywhere in the world to view every inch of a battlefield environment and communicate instructions or reach out and touch personnel and equipment in real time while committing few, if any, troops to the battlefield arena. This is because of robot technology and surveillance systems that make death almost certain for any personnel that expose themselves to the systems our planners and scientists have developed.

According to Max Boot in “War Made New”, however, every victor runs the risk of becoming complacent and relying on the technological and military prowess that provided the last victory. While the U.S. was basking in the benefits of the “peace dividend” our enemies were exploring our weaknesses. The fact that no army will expose itself to the bewildering networks of weaponry deployed by our armed forces creates a new medium of battle. The only way for an enemy to attack is to infiltrate our society with networks that operate with the kind of decentralized structure by which our own special forces deploy.

Each new innovation can only be integrated into a battle system by gradual experimentation and tactical experience. One example of such innovation is information reported by military intelligence that terrorists are using online social networking systems to identify targets, communicate strike opportunities as they arise and conduct surveillance. Thus, older technology is always preserved alongside state of the art developments. This fact brings us to an interesting thesis.

It was predicted to be a matter of less than five years before WMDs would be deployed within the U.S. homeland, according to the the 9/11 Commission. Suit-case nukes, biological weapons and chemical warfare are all available to terrorists and criminals. The argument that nuclear weapons are too high-tech for terrorists is more a kind of denial than a reassurance to any thinking person. Those who study such subjects at the highest levels state that it is just a matter of when the enemy will unleash such weaponry.

Many small arms and personnel are pouring back and forth across the U.S.-Mexican border. An epidemic of kidnappings has started in Phoenix and experts predict that the business of kidnapping is spreading to other cities in the U.S. The fact that many of the kidnappings and much of the contraband and personnel crossing the border involves Mexican gangs goes hand in hand with credible intelligence that Middle Eastern personnel are also coming across our Southern border and receiving many kinds of weapons other than just small arms.

When the new administration uses the complaints about U.S. manufactured guns showing up South of the border, ask yourself whether you would care to be defenseless in El Paso, Texas when the violence spills over the border from Ciudad Juárez.

According to the New York Times, cities llike El Paso, Phoenix and Tucson are “hardly alone in feeling the impact of Mexico’s drug cartels and their trade. In the past few years, the cartels and other drug trafficking organizations have extended their reach across the United States and into Canada. Law enforcement authorities say they believe traffickers distributing the cartels’ marijuana, cocaine, heroin, methamphetamine and other drugs are responsible for a rash of shootings in Vancouver, British Columbia, kidnappings in Phoenix, brutal assaults in Birmingham, Ala., and much more.”

It will not take a WMD event to paralyze our economy. Even temporary economic and social disruption could make our armed forces vulnerable. Various synchronized forces and events are ready to converge in many parts of the world. Cyber-warfare and political confusion can amount to chaos in the midst of profound despair and recriminations.

Think about the questions that existed (and still exist) after the WTC attacks and the invasion of Iraq. Some people still question whether Al Qaeda was really behind the attacks. The apparent confusion about how seriously the American public should view terrorist threats raises the issue of whether additional unrecognized enemies can wreak havoc. Can terrorists intitiate attacks in a manner that disguises the identity of the enemy power initiating an attack? Can these attacks occur via tactical teams utilizing small arms, WMDs or industrial-financial sabotage by computer-hacking or some other electronic attack?

An ordinary-looking freighter ship heading toward New York or Los Angeles launches a missile from its hull or from a canister lowered into the sea. It hits a densely populated area. A million people are incinerated. The ship is then sunk. No one claims responsibility. There is no firm evidence as to who sponsored the attack, and thus no one against whom to launch a counterstrike.

But as terrible as that scenario sounds, there is one that is worse. Let us say the freighter ship launches a nuclear-armed Shahab-3 missile off the coast of the U.S. and the missile explodes 300 miles over Chicago. The nuclear detonation in space creates an electromagnetic pulse (EMP).

Gamma rays from the explosion, through the Compton Effect, generate three classes of disruptive electromagnetic pulses, which permanently destroy consumer electronics, the electronics in some automobiles and, most importantly, the hundreds of large transformers that distribute power throughout the U.S. All of our lights, refrigerators, water-pumping stations, TVs and radios stop running. We have no communication and no ability to provide food and water to 300 million Americans.

This is what is referred to as an EMP attack. Such an attack would effectively throw America back technologically into the early 19th century.

DARPA, a U.S. Government R & D technology lab, was able to create microwave technology at a relatively local cost with generally available electronic components that could disarm many high tech weapons systems. Such inexpensive designs are published on the internet.

The best way to deal with roving bands of killers is on their own terms. The low-tech swarming concept developed by terrorists is also one of the evolving doctrines of our own special forces.

A unit or individual blends into the social environment and, by means of cheap handheld GPS units (available at any electronics shop or outdoor store), cell phone and laptop, units come together as opportunities are presented. Similarly, the ancient Parthian and Mongolians and Turks were just some of the Asiatic horsemen that were able to envelope their enemies by converging from many directions with little or no apparent leadership.

The fact that the Asian “hordes” knew their enemies’ weaknesses stands in stark contrast to the lack of knowledge regarding the onslaught on the part of their victims (Europeans, Persians and Arabic societies, as well as the Chinese empire, to name a few). Such swarming tactics resulted in whole regions becoming systematically repopulated with mountains of skulls.

When a team comes together the units “swarm” their enemy like wolf packs or sharks. The best weapons against such forces are forces of citizens that are armed and trained to detect patterns, react and respond until the police and/or military take over.

The principle of social organization that most characterized the Twentieth Century is the same principle upon which 19th Century factories and armies were organized; the military-industrial complex organized as a massive hierarchy of professionals, bureaucrats, and engineers; i.e., as cog-like components in a huge machine. The concept of a citizen militia seemed outmoded by the 1950s.

A conventional comment is that, “The professional soldiers can provide for our defense.” The idea of a citizen armed with a deer rifle standing up to Blitzkrieg-style storm troopers seems laughable. The U.S. homeland, however, is unlikely to sustain a conventional attack on our homeland, unless our society is already decimated by the networks of terror cells that may already be waiting for the “perfect storm” to arrive.

The fact that so many naysayers deny that we are embroiled in real warfare is because the nature of the new warfare is such that there is normally not a conventional battlefield space.

The real space where the battle occurs is in hearts and minds of citizens and the outcome is determined by how we prepare for and then react to sudden manifestations of violence in schools, churches and synagogues, malls, streets or workplaces.

Our enemies will exploit any dissension (especially partisan gamesmanship) and attempt to break down our trust by creating horrific fear at the same time as the true aims and source of the terrorist acts become more difficult to identify. One source of such “plausible deniability” may result from more than one set of actors with conflicting ideological and national loyalties getting involved, perhaps in joint operations.

There are no means by which enough police can be deployed to guard all our schools. Think of all the workplaces, intersections, overpasses, malls, and other facilities where a few homicide teams bent on destruction and suicide can systematically murder many innocent Americans.

The best defense will be men and women, armed with hand guns and proper training. The government will not take the initiative to train you because “thinking outside the box” is the province of a few individuals- individuals that may lack the patience to wade through the bureaucratic gauntlets. Military officers normally listen to credible military leaders, usually from within their own command.

Even a President or Secretary of Defense has a very difficult time changing the military culture and landscape, littered as it is with turf wars. It took years to unify the various armed forces into an integrated structure where each branch coordinates with the other. A few citizens armed with pistols and spare magazines probably cannot stop a WMD. But think of what happens after a WMD event. If a suit case bomb explodes do you think the carnage will just stop there?

There are some quiet discussions going on among our political leaders about the possibility of arming some of the staff in our schools. There may be a need to change some state and federal laws. Every war takes a different kind of thinking than the last war. The concept that may be foremost in the present day battlefield is “swarming”. No one quite knows quite how it works but for defense of our U.S. homeland it could be as simple as several armed people that are near an intersection stopping one or more terrorist teams from systematically executing drivers while stopped at a traffic light during rush hour.

A Pakistani terrorist, Mir Aimal Kasi, attacked CIA personnel outside the CIA headquarters in Langley, Virginia, killing two CIA employees and wounding three in 1993.

“At around 8 a.m. on January 25, 1993, Kasi stopped his Isuzu pickup behind a number of vehicles waiting at a red traffic light on the eastbound side of Route 123, Fairfax County. The vehicles were waiting to make a left turn into the main entrance of CIA headquarters. Kasi emerged from his vehicle with an AK-47 and proceeded to move among the lines of vehicles, firing into them. Within seconds, he had killed Lansing H. Bennett MD, 66, and Frank Darling, 28. Three others were left with gunshot wounds. Darling was shot first and later received additional gunshot wounds to the head after Kasi shot the other victims.”

Kasi stated later that he wanted to kill people that were more important to the government. Kasi escaped and was hiding in Afghanistan from where the FBI lured him with an offer of a business deal and then captured him by going to his hotel room in Dera Ghazi Khan, in the Punjab province of Pakistan, “rendering” Kasi back to the U.S. Kasi was tried and convicted in the U.S. On November 12, 1997, four US oil executives and their Pakistani taxi driver were shot dead in Karachi, in what was described as a deliberate response to Kasi’s guilty verdict. Kasi was executed by lethal injection in 2002.

All the military experts recognize the viability of the swarming concept. Swarming tactics do not require advanced technology. Just as happens on any other battlefield, technology plays its part and we need the professionals.

Ordinary citizens will usually be able to respond to an emergency that occurs in a public location more quickly than the police. If the professionals are tied down by multiple emergencies, volunteers with radios, cell phones and preparation for defensive tactical engagement may be able to head off potentially devastating attacks. Or even confront jihadist homicide teams.

Citizen defense conflicts with the way many of us have been trained to react but such thinking is in line with the mental outlook of most freedom loving people up until a few generations ago. One of the reasons that Americans got away from such civil defense strategies relates to the defunct official philosophy that the world would be destroyed by nuclear events if there was ever a war. T

hus, the notion developed that there was no use preparing to defend against our enemies since “mutual assured destruction” had become official policy under the Strategic Arms Limitations Treaty (SALT). Even military forces were reconfigured in a manner reflecting the primacy of the unthinkable nuclear threat.

The contributions of many human resources and various perspectives from inside and outside the ranks of the security professionals is indispensible. Intelligence and sophisticated communications, radioactivity detection, bomb squads and medical/rescue teams have been augmented with billions in federal and state funds. Nevertheless, you can get to your neighbor’s home in an emergency faster than any other “first responder”.

You don’t have to be covered with body armor or trained as a SWAT operator or to operate radar to get a concealed carry license, take some defensive shooting classes and think tactically.

The government has also spent billions to inform citizens about the importance of vigilance and getting ready for emergencies. but, at least for now, the tactical training is something that you will have to develop without government assistance, unless you work for the government.

Think about the nature of modern warfare and why individually armed men and women may become more important to our national security than ever before. Our biggest vulnerability is also our greatest strength- the mindset of the average American citizen.

Journalists Need to Explain How the Second Amendment Keeps Everyone More Safe

“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.’”

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”

Proposal for School Marshals in Washington State

The following proposal for School Marshals in Washington state is republished from the March 15, 2018 Spokesman Review. There are once again many heated discussions about how to stop the carnage in our schools. A few years ago, we led a group of trial attorneys through an analysis of what it will take for Washington state schoolContinue reading “Proposal for School Marshals in Washington State”

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.

Brief in Support of Retired LEO Denied Federal LEOSA Card

Petitioner has standing and states a claim upon which relief may be granted because LEOSA and the Administrative Procedure Act is appropriate for the relief sought. Johnson v. New York State Dep’t of Corr. Servs presents facts that are very different from the facts presented herein.  In Johnson, the Plaintiffs asserted a right to carryContinue reading “Brief in Support of Retired LEO Denied Federal LEOSA Card”

Carnage & the Culture of Slaughter: Mumbai November, 2008

If you falter in times of trouble, how small is your strength! Rescue those being led away to death; hold back those staggering toward slaughter. If you say, “But we knew nothing about this,” does not he who weighs the heart perceive it.

Proverbs 24:10-12

The terrorist attack on Mumbai, India in November, 2008 lasted 60 hours. The fact that news media focused on the attack for such an extended period of time amplified the emotional impact.

A 2006 train bombing in Mumbai killed more people but the 172 people that were gunned down marked a new level of terror because of the way that ten shooters were able to move through the city without any effective response from India’s law enforcement or military for several hours. Experts studying the operation have concluded that many aspects of the attack demonstrate new tactics that should be expected in future operations.

Detailed surveillance and planning began at least as early as 2007. The attackers sailed from Karachi but, according to some accounts, at least some of the shooters had already been in the city posing as students. The ten attackers hijacked a trawler, killed the whole crew and then beheaded the captain when they got near enough Mumbai to come ashore in two inflatable boats.

Each terrorist carried a Chinese version of the AK-47 (AK-56 automatic assault rifle) with seven 30 round magazines and 9-mm pistols with two clips. Additionally they carried 8-10 grenades each and IEDs containing RDX, ball bearings for shrapnel, and a timer. There were Heckler & Koch MP5 machine guns that may have been taken from downed Indian security personnel and accounts of prepositioned ammunition caches.

The four teams were able to keep moving and created enough confusion that the police could not seal off an area quickly enough to contain the shooters. The Indian police were totally outgunned as a result of the fact that their government does not trust the police to arm officers properly or even to provide enough ammunition for officers to practice properly. Nevertheless, whenever the shooters were confronted with armed force they moved on to other targets.

Mumbai is a financial center and contains a hub of hotels and other facilities that cater to elite businessmen and foreigners. The terrorists targeted middle class Indians and American, British and jewish travelers that normally utilize the restaurants and hotel facilities.

A two man team went to the train station and opened fire. Then they went to a hospital and began killing again. The team hijacked a police car and headed to a hotel when they were intercepted by the police. One terrorist was killed and the other captured but they caused a third of the total fatalities.

Meanwhile, a second team went to the Nariman House, a Jewish complex. This second two-man team killed eight. A third two-man team went to the Trident-Oberoi Hotel and began cutting people down with automatic weapons fire. During the 17 hours that the hotel was under siege two terrorists killed 30 people and then were themselves killed. The fourth team was a four-man team and deployed to the Taj Mahal Palace Hotel.

Chronology of the Attack

November 26, 2008 (all times are local)

21:20 Gunfire outside the Hotel Oberoi at Nariman Point in south Mumbai.

21:20 Terrorists run into Nariman House, where they take control of the Chabad Lubavich center.

21:30 Gunfire outside the Leopold Café at Colaba in south Mumbai, about 100 meters behind the Taj Mahal Palace Hotel.

21:40 Gunfire near the Bade Miyan Café (behind the Taj Hotel in south Mumbai).

21:45 Terrorists enter Taj Hotel lobby and fire indiscriminately.

21:45 Gunfire inside the Chhatrapati Shivaji Terminus (CST), Mumbai’s central train station. There are ten fatalities there.

22:30 Gunfire at the Municipal Corporation of Greater Mumbai headquarters gate 2, opposite the CST.

22:35 Gunfire at Gokuldas Hospital, near the CST.

22:40 Gunfire at the Cama & Albless Hospital, near the CST.

22:50 Gunfire at the Metro Theatre (Metro Cinema Junction).

23:00 Explosion in a taxi in Vile Parle in north Mumbai. (This is one of the IEDs left behind in the taxi.)

23:00 Explosion in a taxi in Mazgaon—probably the second IED left behind.

23:10 Two explosions at Napean Sea Road in south Mumbai.

23:30 Explosion at Dhobi Talao.

November 27, 2008

00:30 Gunfire after a police van was hijacked at Dhobi Talao.

01:00 Immense blast in the Taj Hotel, possibly caused by two grenades.

02:00 Army arrives at the Taj Hotel.

03:00 Large fire breaks out at the Taj Hotel.

09:15 Army arrives at Oberoi Hotel, storm hotel.

09:15 Security forces engage in first attempt to retake the Taj Hotel.

10:30 Security forces engage in room-to-room searches at the Taj Hotel.

17:30 NSG forces arrive at Nariman House. Helicopters begin surveillance.

November 28, 2008

07:30 NSG forces storm Nariman House.

11:00 Hostage siege ends at the Hotel Oberoi, hostages released.

11:00 NSG forces report that they have cleared the new section of the Taj Hotel.

13:00 Indian security forces report 30 people dead in one Taj Hotel hall.

18:00 Operations reported to have ceased at Nariman House. However, NDTV reports that one floor still has not been cleared.

19:45 All NSG forces emerge from Nariman House, stating that no one was found alive.

November 29, 2008

04:30 Gunfire and explosions heard at the Taj Hotel.

07:30 Fire breaks out on the lower floors of the Taj Hotel.

08:50 Taj Hotel hostage siege declared over, according to Indian police.

By moving constantly, the shooters eluded commandos for 60 hours. Explosions, demands to release imprisoned Muslim fighters in exchange for hostages and detailed knowledge of buildings and streets all contributed to the tactical team’s ability to sow confusion and continue moving. The attackers only attacked in areas where the security was nonexistent or very light. They used cell phones, Satellite phones and Blackberries; handlers in Pakistan provided tactical advice and urged the young men not to be taken alive and to continue killing because the prestige of Islam was at stake.

By identifying goals that exceeded anything that had occurred prior to the attack, the planners boosted LeT’s ability to recruit jihadists within India and worldwide; the organization also gained prestige within the culture of terrorism, thus grasping parity with al Qaeda. The planners, almost certainly affiliated with elements of the Pakistani government also were attempting to destabilize the Pakistani civilian government’s relationship with the United States and other countries, including India itself. The Indian government demonstrated a complete lack of ability to protect its citizens.

Even though it had recently created an elite anti-terror force and intelligence personnel intercepted “chatter” pertaining to an imminent attack, the information was not disseminated from the central security agencies to the local police and coast guard at least in a manner that local security forces took any effective action.

The local Anti-Terrorism Squad was inadequately trained to seal off multiple attacks designed to create exactly the kind of confusion experienced by the first responders. Local army personnel took five hours to arrive. The elite National Security Guard, India’s most elite strike force, did not arrive for almost 10 hours. Counterterrorism experts allow 30-60 minutes from the time an incident commences but the NSG (or Black Cat Commandos) headquartered in Delhi had no aircraft and so the 200 commandos had to patch together air transportation in a helter-skelter manner.

Police officers were often seen hiding behind buildings with their heads down. Helmets and vests were substandard and many officers carried British .303 bolt-action rifles from the 50s. Most Indian officers are only provided with 50 rounds of ammunition per year with which to practice because of corruption and a colonial mentality that deems weapons to be dangerous even in the hands of law enforcement officers.

According to a TimesOnline article, Outgunned Mumbai police hampered by First World War weapons, Dec. 3, 2008:

Most of the police involved were carrying .303s or self-loading rifles like those adopted by the British Army in the 1950s.

Some officers said that they were not given enough weapons training because of a shortage of ammunition and shooting ranges. In theory, all officers shoot 50 rounds a year in training. In practice, senior officers get their full quota with small arms.

“The rest is all bunkum,” Mr Pereira said. “It’s target practice with a .303 rifle. I wouldn’t call it suitable knowledge of weapons and their uses in urban policing.”

All those interviewed said that the issue was not money: the Government allocated £154 million for modernising the police in 2007-08 alone. The problem, they said, lay with the Home Ministry’s procurement system, which is dominated by corrupt bureaucrats and politicians rather than technical experts.

“It’s a cartel,” Mr Singh said. “The Government is spending millions, but the police isn’t getting the equipment it needs.”

http://www.timesonline.co.uk/tol/news/world/asia/article5276283.ece

Thus, India’s strict gun laws severely hampered the ability of citizens and law enforcement to protect themselves from the armed attacks.

The low-tech nature of the equipment, the drawn out horror of a paralyzed city and the prestige garnered by mass carnage ensures that such an attack is being planned in the U.S. Are we ready?