Sina Ghodsee, V. City Of Kent, Et Ano

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SINA GHODSEE, an individual, through ) No. 82897-5-I
Litigation Guardian ad Litem, JOSHUA )
BROTHERS, ) DIVISION ONE
)
Appellant, ) PUBLISHED OPINION
)
)
and )
)
SHAHRBANOO GHODSEE, an individual, )
)
Plaintiff, )
)
v. )
)
CITY OF KENT, a political subdivision of )
the State of Washington, and KING )
COUNTY, d/b/a King County Crisis and )
Commitment Services, )
)
Respondents. )
)
HAZELRIGG, J. — Sina Ghodsee appeals from an order granting summary
judgment in favor of King County and the City of Kent. Ghodsee sued in
negligence, alleging both government entities failed to exercise reasonable care in
detaining him under the involuntary treatment act.1 Ghodsee fails to meet his
burden of raising a material issue of fact as to each of the essential elements of
1 Ch. 71.05 RCW.
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negligence or demonstrate that the entities were not entitled to statutory immunity.
Accordingly, summary judgment dismissal was proper and we affirm.
FACTS
On Friday, June 23, 2017, Shahrbanoo Ghodsee2 contacted King County
Crisis and Commitment Services (KCCCS) with concerns about her son, Sina
Ghodsee. Shahrbanoo reported Ghodsee was not taking his medication, was
“agitated” and “delusional,” and she had left the home to stay elsewhere. Four
days later, a “Designated Mental Health Professional” (DMHP)3 called to schedule
an appointment for a team of DMHPs to meet with Shahrbanoo at the Ghodsee
home. The DMHPs intended to interview Ghodsee pursuant to the involuntary
treatment act (ITA), but were unsuccessful and eventually left the home after
Ghodsee pointed “what appeared to be a table leg at [them] like a gun.” They
called the police; officers from the Kent Police Department (KPD) responded and
attempted to make contact with Ghodsee, but were similarly unsuccessful and
disengaged.4 On Thursday, June 29, a DMHP filed a Petition for Initial Detention
(Non-Emergency) in King County Superior Court, which the court granted.
On Friday, June 30 and again on Saturday, July 1, a team of DMHPs and
several officers from KPD went back to the Ghodsee home but were ultimately
unable to detain Ghodsee. On Sunday, July 2, KPD was dispatched to the
2 Shahrbanoo is a plaintiff in the case but not a party to the appeal. We refer to her by her
first name and her son, the appellant, as Ghodsee. No disrespect is intended.
3 Subsequent amendments to the involuntary treatment act replaced the term “Designated
Mental Health Professional,” or DMHP, with “Designated Crisis Responders” (DCRs). This opinion
uses the terminology applicable at the time of the events at issue.
4 KPD reported Ghodsee swung a skateboard at them “like a bat” when an officer attempted
contact.
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Ghodsee home after a neighbor called law enforcement concerned that Ghodsee
was threatening someone and possibly carrying a rifle. The caller could not state
with any certainty that he saw a gun, and KPD never observed a crime, so the
officers eventually left without attempting to contact Ghodsee. The next week, on
Friday, July 7, KPD officers formulated a plan to take Ghodsee into custody when
he left his home to get groceries or cigarettes. Around midnight on July 9, the
manager at a local grocery store called KPD to inform them Ghodsee was on site,
but by the time officers arrived Ghodsee had left.
On Monday, July 10, KPD received two emergency calls from Ghodsee’s
neighbors, reporting Ghodsee had shot at the neighbor’s occupied home. KPD
responded and saw Ghodsee in the window of his home with a rifle raised, pointed
in the direction of the officers. Two officers simultaneously fired, and Ghodsee
disappeared from sight. Officers on the scene used a drone to see inside of the
home, where they observed Ghodsee laying on the floor. Ghodsee was taken into
custody. He sustained a gunshot wound to the head, surviving but suffering
significant and life-changing injuries.
On May 28, 2020, Ghodsee, through a litigation guardian ad litem, and
Shahrbanoo filed a civil complaint against the City of Kent (City). They later
amended their complaint to add King County (County), doing business as KCCCS,
as a defendant. On May 21, 2021, both defendants moved for summary judgment
dismissal on the basis of the public duty doctrine and claims of statutory immunity.
The motion was heard on June 18, 2021. The trial court granted summary
judgment for both defendants on July 8, 2021. Ghodsee timely appeals.
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ANALYSIS
I. Standard of Review
This court reviews a summary judgment order de novo, engaging “in the
same inquiry as the trial court.” Wallace v. Lewis County., 134 Wn. App. 1, 12,
137 P.3d 101 (2006). Like the trial court, this court “review[s] all evidence and
reasonable inferences in the light most favorable to the nonmoving party,” affirming
if there are no genuine issues of material fact “and the moving party is entitled to
judgment as a matter of law.” Dalen v. St. John Med. Ctr., 8 Wn. App. 2d 49, 57,
436 P.3d 877 (2019). A genuine issue of material fact exists if reasonable minds
could differ on facts which control the outcome of the proceeding. Id. at 58.
A negligence action contains four elements: (1) duty, (2) breach, (3) injury,
and (4) proximate cause. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552,
192 P.3d 886 (2008). “If any of these elements cannot be met as a matter of law,
summary judgment for the defendant is proper.” Id.II. Duty of Care and the Public Duty Doctrine
Ghodsee first argues both entities owed him a duty of care. He contends
the County owed him (1) a “take charge duty” under the special relationship
exception to the public duty doctrine, and (2) a duty to enforce the non-emergency
detention order (NED) issued by the trial court. He asserts the City owed him a
duty (1) to exercise reasonable care in discharging its responsibilities, and (2) to
enforce the NED. This court reviews “the existence of a duty as a question of law”
de novo. Washburn v. City of Fed. Way, 178 Wn.2d 732, 753, 310 P.3d 1275-4-
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(2013). Duty is a “threshold issue.” Mita v. Guardsmark, LLC, 182 Wn. App. 76,
83, 328 P.3d 962 (2014).
In evaluating the duty of a governmental entity, we must also consider the
public duty doctrine. Washburn, 178 Wn.2d at 753–54. To succeed in a
negligence claim against a governmental entity, the plaintiff must demonstrate the
government owed a duty to the individual plaintiff, rather than the public at large.
Id. at 754. “[A] duty to all is a duty to no one.” J & B Dev. Co. v. King County, 100
Wn.2d 299, 303, 669 P.2d 468 (1983) (overruled on other grounds by Meaney v.
Dodd, 111 Wn.2d 174, 179–80, 759 P.2d 455 (1988)). While similar to sovereign
immunity, the public duty doctrine uniquely “recognizes the existence of a tort,
authorizes the filing of a claim against a [government entity] and also recognizes
applicable liability subject to some limitations.” Id. This differs from sovereign
immunity, which denies all liability. Id.There are several exceptions to the public duty doctrine, which are “used
as ‘focusing tools’ to determine whether the public entity had a duty to the injured
plaintiff.” Taggart v. State, 118 Wn.2d 195, 218, 822 P.2d 243 (1992). The four
exceptions are (1) legislative intent, (2) failure to enforce, (3) rescue doctrine, and
(4) special relationship. Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 549
n.7, 442 P.3d 608 (2019); 5 see also Cummins v. Lewis County, 156 Wn.2d 844,
853 n.7, 133 P.3d 458 (2006).
5 Beltran-Serrano noted the public duty doctrine does not lessen the government’s duty of
reasonable care in direct interactions with others, specifically law enforcement’s “duty to refrain
from directly causing harm to another through affirmative acts of misfeasance.” Id. at 550.
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A. Whether the County Has a Duty Based on a Special Relationship
Ghodsee first argues the County owed him an individualized duty akin to
the take charge duty or provider-patient special relationship exception to the public
duty doctrine. He specifically alleges the language and posture of the NED order
created a take-charge-like relationship between Ghodsee and the DMHPs.6
Under the Restatement (Second) of Torts § 315 (Am. Law Inst. 1965), there
is generally no duty to prevent a third party from harming another. If, however, “a
special relation exists between the actor and the third person,” there may be a duty
to “control the third person’s conduct.” Id. One such special relationship arises
when an actor “takes charge of a third person whom [they] know or should know
to be likely to cause bodily harm to others if not controlled,” creating “a duty to
exercise reasonable care.” Id. at § 319. Our courts have held “this duty extends
to self-inflicted harm.” Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 639, 244
P.3d 924 (2010). Our courts have recognized a special relationship, separate from
a take charge duty, between mental health providers and patients under § 315 of
the Restatement. See Petersen v. State, 100 Wn.2d 421, 426–27, 671 P.2d 230(1983).
In Estate of Davis v. Department of Corrections, the Washington State
Supreme Court considered whether there was a special relationship between an
6 The respondents argue this issue is not properly before this court because it was not
raised in the trial court. This court only considers issues raised on summary judgment before the
trial court “to ensure that we engage in the same inquiry as the trial court.” Kave v. McIntosh Ridge
Primary Rd. Ass’n, 198 Wn. App. 812, 823, 394 P.3d 446 (2017). However, Ghodsee did argue
duty based on the special relationship exception before the superior court and the record provided
is sufficient for us to consider this issue. See Turner v. Dep’t of Soc. & Health Servs., 198 Wn.2d
273, 293 n.15, 493 P.3d 117 (2021) (citing RAP 2.5(a) (court reached an issue not brought before
the trial court on summary judgment)).
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individual on community custody and a mental health counselor who conducted
“an initial assessment” to evaluate whether counseling would be beneficial to the
person under supervision by the Department of Corrections. 127 Wn. App. 833,
837, 113 P.3d 487, 491 (2005). The court found there was no special relationship
because the counselor met with the individual “only one time,” to provide an initial
assessment. Id. at 842. This brief interaction was “not a definite, established, and
continuing relationship that would trigger a legal duty.” Id.
Our Supreme Court then reviewed whether there was a special relationship
between a mental health professional and patient in Volk v. DeMeerleer. There,
the court held a psychiatrist and their outpatient client had a nine-year relationship
which triggered a duty under § 315 of the Restatement. Volk, 187 Wn.2d 241, 274,
386 P.3d 254 (2016). More recently in Konicke v. Evergreen Emergency Services,
P.S., this court analyzed the existence of a special relationship between a patient
and an emergency health provider. We found there was no “definite, established,
and continuing” relationship where the patient made a single visit to the emergency
room. 16 Wn. App. 2d 131, 138, 480 P.3d 424 (2021) (quoting Volk, 187 Wn.2d
at 256).
The statutory role of the DMHP, now “Designated Crisis Responder” (DCR),
is to investigate and evaluate information, determine whether to file a petition for
initial detention or involuntary outpatient evaluation, and personally interview the
individual to determine if they will voluntarily receive evaluation and treatment. See
former RCW 71.05.150 (2015), amended by LAWS of 2016, ch. 29 § 211. Even
viewing the evidence in the light most favorable to Ghodsee, there was no definite,
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established, and continuing relationship here. The first indirect interaction the
DMHPs had with Ghodsee was on June 23, when Shahrbanoo contacted KCCCS.
A DMHP team attempted to conduct an initial assessment on June 28 but never
made direct contact with Ghodsee. After the DMHPs heard yelling inside and saw
Ghodsee holding “something” that looked like a rifle in an upstairs window, they
left. Based on the information available to the DMHPs through those limited
interactions, the County filed a petition for non-emergency detention the next day,
June 29, but did not attempt to make contact with Ghodsee. The DMHP team next
had limited interaction with Ghodsee on June 30, when they accompanied KPD to
the home in an attempt to effectuate the NED order. They did not make direct
contact. The DMHPs returned again on July 1, with police, but again did not make
direct contact with Ghodsee due to safety concerns. After that date, the DMHPs
never returned to the home or made direct contact with Ghodsee at any point prior
to the shooting.
Based on the statutory role of DMHPs, now DCRs, and the actions of the
specific DMHPs at issue here, there was no continuing, definite, and established
relationship giving rise to a legal duty. The DMHP-potential detainee relationship
is more akin to a patient and emergency room provider (Konicke) or a client and
mental health provider in the context of an initial assessment (Davis), and less
similar to a nine-year outpatient therapeutic relationship between a psychiatrist and
patient (Volk). If the DMHPs had any direct contact with Ghodsee, their role would
have been limited to conducting an investigation and filing a petition for detention
if they felt it was called for. See former RCW 71.05.150. Viewing the facts in the
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light most favorable to Ghodsee as we must when reviewing an order on summary
judgment, the period of time during which the DMHPs were tangentially involved
with Ghodsee was brief, lasting only from June 23 until July 10. This differs starkly
from cases where our courts have found a special relationship.
The limited role of the DMHP as defined by statute, and the brief relationship
between Ghodsee and the specific DMHPs at issue here, does not rise to the level
of a “definite, established, and continuing relationship” to support a legal duty
within the framework of the public duty doctrine.
B. Whether the County or City Has a Duty Under the NED Order
In analyzing whether a “take charge” duty under § 319 of the Restatement
exists, we first look to the nature of the relationship. Davis, 127 Wn. App. at 842.
In Davis, the court held “[t]he two most important considerations are the court order
placing the corrections officer in charge and the statutes giving the officer the
power to act.” Id. Our courts have applied this duty in the context of “various types
of community supervision programs,” including the duties of community
corrections officers, city probation counselors, county pretrial release counselors,
and county probation officers. See Harper v. State, 192 Wn.2d 328, 342, 429 P.3d
1071 (2018) (internal citations omitted). Ghodsee asks us to extend the application
of this type of duty outside the context of corrections or community supervision
based on the NED order.
Ghodsee argues the language of the NED order created a take charge duty
by directing DMHPs and KPD to detain him. However, we consider a court order
and statutory authority to act. See Davis, 127 Wn. App. at 842, see also Miller v.
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Pierce County, No. 53344-8-II (Wash. Ct. App. Feb. 9, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2053344-8-II%20Unpublished%20O
pinion.pdf (county owed a duty under its statutory authority to confine an individual
“and the court’s order requiring it to do so” pursuant to a judgment and sentence).7
Former RCW 71.05.150(4) only grants DMHPs authority to “notify a peace officer
to take such person or cause such person to be taken into custody.” They have
no statutory authority nor statutory mandate to physically detain an individual
themselves. Rather the statute is clear that they “may notify” a peace officer to
take an individual into custody. See Id.
The language of the NED order is similarly clear. The superior court found
Ghodsee “presents a likelihood of serious harm to others,” but did not find he
presented a likelihood of harm to himself. The court ordered that Ghodsee “shall
be detained by a [DMHP]” and further ordered “any peace officer shall take the
respondent into custody.” Washington case law has consistently held “‘that the
word “shall” in a statute is presumptively imperative and operates to create a duty.’”
In re Dependency of T.P., 12 Wn. App. 2d 538, 548, 458 P.3d 825 (2020) (quoting
In re Parental Rights to K.J.B., 187 Wn.2d 592, 601, 387 P.3d 1072 (2017)).
Likewise, the plain language of the court order directing the government to detain
Ghodsee creates a legal duty. However, this duty is one owed to the public at
large, not an individual duty owed to Ghodsee. See Osborn v. Mason County, 157
Wn.2d 18, 28, 134 P.3d 197 (2006) (“County has a ‘duty’ to protect its citizens in
7 We may utilize unpublished opinions when “necessary for a reasoned decision.” GR
14.1(c). Miller provides a helpful analysis of duty in the context of a court order.
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a colloquial sense, but it does not have a legal duty to prevent every foreseeable
injury.”).
For example, in Miller, the County had a duty to an individual under the
special relationship and take charge doctrines where the County was authorized
by statute to confine an offender pursuant to a criminal conviction and a superior
court “order required the County to ensure Robinson reported for [electronic home
monitoring] or reported to the jail on August 5, 2016.” No. 53344-8-II, slip. op. at
7 (analyzing dismissal of a complaint under CR 12(b)(6)). A critical factual
distinction from the case before us is that Miller was ordered remanded to the
custody of the county pursuant to a felony judgment and sentence and
accompanying warrant of commitment. Id. at 2–3. In contrast, the NED order did
not direct any specific law enforcement agency to detain Ghodsee, nor did it dictate
any particular date or mechanism for detaining Ghodsee.
In evaluating a take charge relationship, the inquiry is specific to “the
relationship” between the government actor and tortfeasor.8 Hertog, ex rel. S.A.H.
v. City of Seattle, 138 Wn.2d 265, 279, 979 P.2d 400 (1999). Hertog analyzed the
relationship between a pre-trial probation officer and probationer, holding that
because the probation officer “is clearly in charge of monitoring the probationer [ ]
and has a duty to report violations to the court,” there is a take charge duty. Id.The probation officer-probationer relationship differs significantly from an officer
ordered to detain an individual under the ITA. There is no ongoing, monitoring
8Our courts have held this duty includes protection from self-inflicted harm. Gregoire, 170
Wn.2d at 639. Ghodsee alleges the County and City had a duty to protect him from self-inflicted
harm under the take charge duty.
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relationship and no duty to report actions to the court. In a probation officer-
probationer relationship, “two of the most important features” are a court order
placing an offender “on the supervising officer’s caseload and the statutes that
describe and circumscribe the officer’s power to act.” Couch v. Dep’t of Corr., 113
Wn. App. 556, 565, 54 P.3d 197 (2002). This individualized responsibility differs
from the general language in the NED order, and there is no similar language in
the order or in the ITA that “describe[s] and circumscribe[s]” how the officers may
act in effectuating the detention order. Id.There are three historical purposes underlying the public duty doctrine: (1)
preventing excessive liability for government entities, (2) avoiding “hindering the
governing process,” and (3) providing “a mechanism for focusing” the element of
duty. J & B Dev. Co., 100 Wn.2d at 304. This doctrine balances the rights of an
injured plaintiff with the need to limit governmental liability “[b]ecause
governments, unlike private persons, are tasked with duties that are not legal
duties within the meaning of tort law.” See Washburn, 178 Wn.2d at 753, see also
Osborn, 157 Wn.2d at 28 (“the public duty doctrine helps us distinguish proper
legal duties from mere hortatory ‘duties.’”).
Ghodsee bears the burden to demonstrate the government owed him an
individual duty, rather than a duty to the public at large, in order to survive summary
judgment. Viewing the facts in the light most favorable to Ghodsee, he fails to
show an actionable duty based on the NED order as to either the County or the
City. For this reason, his negligence claim fails as a matter of law.
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C. Law Enforcement Duty of Care
Ghodsee also argues KPD breached its duty of reasonable care in its direct
interaction with him by failing to detain him more swiftly after the NED order was
issued. His claim is essentially that, had he been detained sooner, he would not
have been shot by KPD or suffered the serious injuries that resulted from the
shooting. Generally, “‘every individual owes a duty of reasonable care to refrain
from causing foreseeable harm in interaction with others,’” including law
enforcement officers. Mancini v. City of Tacoma, 196 Wn.2d 864, 879, 479 P.3d
656 (2021) (quoting Beltran-Serrano, 193 Wn.2d at 550). Washington case law
has held this duty applies in direct interactions with individuals. See, e.g., Watness
v. City of Seattle, 16 Wn. App. 2d 297, 307, 481 P.3d 570 (2021) (“an officer owes
a legal duty to exercise reasonable care when engaging in affirmative conduct
toward others.”) (emphasis added)); Robb v. City of Seattle, 176 Wn.2d 427, 439,
295 P.3d 212 (2013) (“In order to properly separate conduct giving rise to liability
from other conduct, courts have maintained a firm line between misfeasance and
nonfeasance.”).
Police have a duty to exercise reasonable care when discharging their
duties, including effectuating court orders. See Mancini, 196 Wn.2d at 880. This
necessarily includes the exercise of discretion by law enforcement as to how to
effectuate those court orders. There is nothing in statute or in the NED order that
required KPD to enforce the detention order in any particular way; the officers had
discretion to determine the safest way to carry out the court’s order. Their actions
in effectuating the NED order were further constrained by various constitutional
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considerations that necessitate a flexible response based on the particular
circumstances of the interaction.
In Konicke, this court declined to recognize a claimed duty for emergency
healthcare providers to detain patients under the ITA in part because it would
“seriously undermine[] the legislative goal of safeguarding the individual rights of
such patients.” 16 Wn. App. 2d at 144. Likewise, finding legal liability on the part
of a governmental entity based on detaining an individual would also seriously
undermine this legislative goal. In Robb, our Supreme Court discussed the
distinction in tort law between misfeasance and nonfeasance, holding that where
officers “did not affirmatively create a new risk,” the act was nonfeasance and did
not give rise to liability. 176 Wn.2d at 437–39. To hold otherwise would lead to
“an unpredictable and unprecedented expansion of . . . liability.” Id. at 439.
As Konicke noted, “chapter 71.05 RCW was not enacted for the particular
benefit of third parties injured by people suffering from serious behavioral health
disorders but, rather, for the benefit of people with behavioral health disorders
themselves.” 16 Wn. App. 2d 140–41. While the legislative intent of the statute
includes “‘protect[ing] public safety through use of the parens patriae and police
powers of the state,’” applying broad liability “runs counter to the statutory scheme,
which specifically limits liability for the detention decisions made by emergency
healthcare providers” and government actors. Id. at 143 (quoting RCW
71.05.010). Additional legislative intent expressed in former RCW 71.05 is
preventing inappropriate or indefinite commitment, safeguarding individual rights,
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and providing continuity of care.9 Allowing for broad liability of government entities
does not support any of these purposes, and as this court noted in Konicke,
expanding liability seriously undercuts the purpose of safeguarding individual
rights.
To expand liability of a law enforcement agency based on failure to detain
pursuant to the ITA or a NED order in a particular way or within a particular
timeframe would undermine the very language of the ITA itself, which seeks to
safeguard individual rights. The risk that imposing liability “could encourage” law
enforcement “to detain patients merely to avoid potential liability to third parties,”
presents a significant challenge to the individual rights of potential detainees who
are protected under the ITA. See Id. at 144.
Importantly, the NED order only ordered Ghodsee to be detained by law
enforcement. Exercising reasonable care, particularly in the constantly evolving
circumstances of a mental health crisis, necessitated discretion on the part of
police in terms of how that order would be carried out. The existence of the NED
did not suspend Ghodsee’s right to privacy in his home, for example, or to be free
from search or seizure in the absence of either a warrant or applicable exception
to state and federal warrant requirements.10 While a neighbor reported Ghodsee
“was threatening some unknown individual and had a gun,” when officers
responded, the neighbor admitted he did not see Ghodsee “directly threatening
9 The statements of legislative intent expressed in the former version of RCW 71.05.010,
applicable at the time of the incident, are identical to those expressed in the current version
discussed in Konicke.
10 “Officers must have a warrant or a well-established exception to the warrant requirement
before intruding into a home.” City of Shoreline v. McLemore, 193 Wn.2d 225, 226 (2019).
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anyone nor could he be sure he saw a firearm.” The City argues that no exception
to the warrant requirement applied, as there was no probable cause that a crime
had occurred which would have been a prerequisite to arresting Ghodsee11 on that
date and there were no exigent circumstances to justify entering the home.12
Contrary to Ghodsee’s assertion, the NED order does not function as a warrant or
otherwise suspend Ghodsee’s individual rights protected by warrant requirements
and other constraints on the actions of law enforcement.
Viewing the evidence in the light most favorable to Ghodsee, he fails to
demonstrate that the City owed him a duty beyond the exercise of reasonable care,
or that there exists a material issue of fact as to this claim, and summary judgment
in favor of the City is proper.
III. Whether the County or City Is Entitled to Immunity Under Former RCW
71.05.120
Ghodsee next alleges the trial court erred in finding that both government
entities had immunity under former RCW 71.05.120. (Laws of 2016, ch. 29 § 208).
He concedes the statute applies to the County’s “belated decision to detain Sina,”
but asserts that it does not apply to its actions “in the execution of the detention
order.” Ghodsee argues he raised a material question of fact as to whether the
County was grossly negligent sufficient to defeat any claim of statutory immunity.
11 Probable cause alone is not sufficient for a warrantless search, but may support an
arrest, which in turn supports a search incident to arrest. State v. Tibbles, 169 Wn.2d 364, 369, 236
P.3d 885 (2010); State v. Salinas, 169 Wn. App. 210, 216, 279 P.3d 917 (2012).
12 “The exigent circumstances exception to the warrant requirement applies where
‘obtaining a warrant is not practical because the delay inherent in securing a warrant would
compromise officer safety, facilitate escape[,] or permit the destruction of evidence.’” Tibbles, 169
Wn.2d at 370 (internal quotation marks omitted).
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For both entities, Ghodsee contends the statute is inapplicable because the
allegedly negligent acts were unrelated to the “decision of whether to . . . detain”
Ghodsee as the superior court had already made that decision when it signed the
NED order. Former RCW 71.05.120 states:
(1) No officer of a public or private agency, nor the
superintendent, professional person in charge, his or her
professional designee, or attending staff of any such agency, nor any
public official performing functions necessary to the administration of
this chapter, nor peace officer responsible for detaining a person
pursuant to this chapter, nor any designated crisis responder, nor the
state, a unit of local government, an evaluation and treatment facility,
a secure detoxification facility, or an approved substance use
disorder treatment program shall be civilly or criminally liable for
performing duties pursuant to this chapter with regard to the decision
of whether to admit, discharge, release, administer antipsychotic
medications, or detain a person for evaluation and treatment:
PROVIDED, That such duties were performed in good faith and
without gross negligence.
The statutory language addresses detention, but also expressly includes a
variety of other duties—admitting or discharging a patient, releasing a patient, and
administering medication. Id., see also Konicke, 16 Wn. App. 2d at 145–46. These
duties are more than mere mental decisions, but encompass the acts taken to
effectuate those decisions. Potential civil liability does not only arise from the
choice to administer medications or detain an individual, but also the acts taken to
carry out those decisions. To hold otherwise would result in an unlikely or illogical
outcome. “We interpret statutes to avoid unlikely, strained, or absurd
consequences.” Michel v. City of Seattle, 19 Wn. App. 2d 783, 792, 498 P.3d 522(2021). And while, as Ghodsee notes, we do “generally construe statutory
immunities narrowly,” if “the plain meaning is unambiguous, statutory construction
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is inappropriate.” Leishman v. Ogden Murphy Wallace, PLLC, 196 Wn.2d 898,
906, 479 P.3d 688 (2021).13 The statute uses the phrases “performing functions”
and “performing duties,” which clearly intends to capture actions taken “with regard
to” the decisions made as to detention and treatment of a person under the ITA.
The plain meaning of the statute is unambiguous.
Because the plain language of the statute provides immunity for actions as
well as decision-making, both the City and County are entitled to statutory
immunity for their actions “with regard to” the decision to detain and Ghodsee must
demonstrate gross negligence in order to overcome immunity. However, because
Ghodsee fails to demonstrate either entity owed him an individualized duty of care
as a matter of law, we need not reach the issue of gross negligence. To survive
summary judgment, Ghodsee must raise a material issue of fact as to all four
elements of negligence: duty, breach, damage and causation. Because the failure
to meet his burden on the element of duty is fatal to his claim, we need not review
the other elements.14
13 Per Montoya-Lewis, J., with three justices concurring and one justice concurring
separately.
14 The City dedicated a portion of its brief, and its oral argument, to the felony defense to
Ghodsee’s excessive force and assault claims. RCW 4.24.420 provides a “complete defense” to
an action against law enforcement for personal injuries or death if the injured person “was engaged
in the commission of a felony at the time.” The trial court found Ghodsee’s excessive force and
assault claims (Cause of Action V) were barred under RCW 4.24.420. Ghodsee does not assign
error to this decision, and states explicitly he is not advancing his excessive force argument on
appeal.
While Ghodsee’s reply brief contains a heading stating “Trial Court Erred in Applying the
Felony Defense,” RCW 4.24.420 was applied only to the excessive force and assault claims, which
Ghodsee concedes he is not appealing. The City likewise does not assign error to the trial court’s
limitation of RCW 4.24.420 to assault and excessive force. As such, we decline to reach the merits
of this issue.
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No. 82897-5-I/19
Ghodsee suffered immense injuries as a result of a devastating situation.
He survived a gunshot wound to the head, but suffered a traumatic brain injury and
severe cognitive impairments. He may never regain full independence. We
acknowledge that Ghodsee and his family have suffered, and we are aware that
by affirming the trial court, his civil claim is dismissed. We, however, also
recognize that responding to mental health crises necessarily requires flexibility
and individualized responses.
Our state legislature has made clear that officers must retain discretion as
they interact with individuals in our communities so that they may be appropriately
responsive to the circumstances presented to them. SUBSTITUTE H.B. 1735, 67th
Leg., Reg. Sess. (Wash. 2022).15 The law recognized that specific de-escalation
tactics “[d]epend[] on the circumstances,” (Section 2), but also clarifies that
physical force may still be used in certain circumstances, including in detaining an
individual under the ITA. Our legislature has also implemented crisis intervention
training requirements for law enforcement officers. See RCW 43.101.427. There
are crucial policy reasons, including the very nature of mental health crises and
de-escalation, to empower agencies to adapt and respond to each unique situation
as it unfolds. Our legislature has directed that agencies must be able to work
responsively, and be able to prioritize de-escalation. Even in amending RCW
10.120.020, the legislature acknowledged that the statute “represents national
15 We recognize this law, passed in 2022, was inapplicable at the time of the incident.
However, Ghodsee submitted the session law, in its entirety, to this court as an additional authority
under RAP 10.8. While he urged this court to focus on sections 3(1)(d), 3(1)(f) and 3(5)(a)-(b), we
would be remiss if we ignored the other sections which assist in our analysis. We cite to this law
for its persuasive value as it sheds light on how our legislature navigates issues of de-escalation
by law enforcement agencies.
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No. 82897-5-I/20
best practices.” SUBSTITUTE H.B. 1735. Washington statute requires law
enforcement officers to “[w]hen possible, use all de-escalation tactics that are
available and appropriate under the circumstances before using physical force.”
RCW 10.120.020(3)(a).
When KPD made direct contact with Ghodsee on June 28, he responded in
a threatening manner and the officer implemented the de-escalation technique of
shielding by retreating from the home and closing the door between himself and
Ghodsee. Ghodsee’s argument that the officer should have been more aggressive
in that moment so that the detention could have been completed, and thus avoiding
the tragic shooting days later, runs counter to the clear policy considerations of our
legislature. Officers must be empowered to continue utilizing de-escalation
techniques whenever possible, as “best practices.” The court did not err in
granting summary judgment in favor of both the City and County.16
Affirmed.
WE CONCUR:
16 On February 22, Ghodsee filed a Statement of Additional Authorities with this court. The
City objected, arguing this court should decline to consider authorities which were published before
Ghodsee’s reply brief was submitted. The City is correct that the purpose of RAP 10.8 “is to provide
parties with an opportunity to bring to the court’s attention cases decided after the parties submitted
their briefs.” See Gull Indus., Inc. v. Granite State Ins. Co., 18 Wn. App. 2d 842, 857 n.11, 493 P.3d
1183 (2021). However, had the authorities been brought to the attention of this court at oral
argument, we would have properly considered them and we consider the authorities insofar as they
are helpful in reaching our decision.
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