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Roy v. City of Everett2/6/1992
ve basic policy decisions and was not entitled to immunity. In Mason v. Bitton, 85 Wash. 2d 321, 328, 534 P.2d 1360 (1975), we concluded that the decision to chase or not to chase an individual does not fall within the scope of immunity. Similarly, we did not believe that the decision to release information about a police investigation to the press was an executive or administrative decision that warranted immunity. Chambers-Castanes, 100 Wash. 2d at 283; Bender v. Seattle, 99 Wash. 2d 582, 589-90, 664 P.2d 492 (1983). In all these cases we deemed the discretionary conduct "operational" or "ministerial".
Roy's claim that the City and police department did not create, fund, or monitor "appropriate" training programs and record-keeping systems, however, is qualitatively different from the conduct discussed in Chambers-Castanes, Bender, or Mason. A governmental agency's decision to "create, fund, and monitor" programs or a record-keeping system, pursuant to the domestic violence act, clearly falls within the scope of discretionary immunity. First, it is a policy of this State to change the attitudes and practices of law enforcement agencies, so that these agencies recognize that domestic violence is not tolerable and they enforce the
law against persons who commit acts of domestic violence. Secondly, the creation, funding, and monitoring of programs that "appropriately" educate peace officers and generate records that render enforcement more effective are essential to the realization of these policy goals. Third, the allocation of funds for, and the development of, "appropriate" departmental educational programs and record-keeping systems involves the exercise of fiscal, educational, and organizational judgment and expertise. Fourth, the domestic violence act authorizes the City and the department to fund, create, and monitor "appropriate" educational programs and the record-keeping system required to achieve the purposes of the act. The City of Everett and the police department are immune from liability for the alleged failure to "create, fund, and monitor appropriate training programs . . . and appropriate record keeping" system because their conduct involved basic policy and was the product of considered policy. Brief of Respondent, at 37. I believe that the trial court should have granted summary judgment in defendants' favor of Roy's claims that the City and department did not properly create, fund, or monitor educational and record-keeping programs, as set forth in Roy's fifth cause of action.
Roy further contends that the department, or its individual agents, did not conduct an investigation and send the additional information that the prosecutor's office requested on April 12, 1988. She also alleges that the department or its agents negligently returned Glenn's gun to him, although Glenn did not have a permit for the weapon and the investigation of the January assault was pending. These allegations, however, are allegations of individual negligence and misconduct, viz., that Officers Rasmussen and Stewart negligently returned Glenn's gun and Officers McDonald and Campbell did not further investigate and send the additional information that the prosecutor requested. These acts of alleged negligence by individual officers fall within the scope of immunity that RCW
10.99.070 extends because they are actions or omissions, by peace officers, arising out of an incident of domestic violence, and Roy does not contend that the officers acted in bad faith.
In summary, I would hold that discretionary immunity shields the City and department
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