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Gadd v. State12/31/1997
2)(b).
b. Kidnapping
Gadd and Randel argue the officers had a duty to arrest Grigsby for taking Randel hostage. Witnesses at the scene shouted to the officers that Grigsby had forced Randel into his automobile against her will. Sgt. McMahon's report indicated he radioed other units about a possible hostage-taking incident. The officers probably had actual knowledge of a violation of RCW 9A.40, Washington's kidnapping and unlawful imprisonment statute. If so, under RCW 10.31.100, the officers had authority to arrest Grigsby either for alleged kidnapping or for general assault. But, as discussed above, the officers had discretion, but not a duty to arrest. Donaldson, 65 Wn. App. at 670; Forest, 62 Wn. App. at 369-70; RCW 10.31.100.
c. Driving While Intoxicated
Gadd and Randel argue the officers had a duty to arrest Grigsby to prevent him from driving while intoxicated. The only arguable evidence of actual knowledge of intoxication was CPD Sgt. McMahon's testimony that he thought Grigsby was "under the influence of some sort of chemical." There is no evidence that other officers had any indication that Grigsby was intoxicated, including Sgt. Martin, who got closest to Grigsby.
Police officers have a duty to take into custody a person they know to be intoxicated in public, and a duty to prevent a person they know to be intoxicated from driving an automobile. RCW 70.96A.120(2); Bailey, 108 Wn.2d at 269-70. Gadd and Randel are within the class of persons the drunk driving statute was intended to protect. Bailey, 108 Wn.2d at 269 (statute was enacted in part to protect innocent motorists). But even assuming that Sgt. McMahon may have known that Grigsby was intoxicated, Gadd and Randel cannot establish that McMahon breached this duty by failing to take corrective action.
2. Corrective Action
In Bailey, the Supreme Court held that the town of Forks owed a duty to a woman injured by a drunk driver shortly after a Forks police officer ordered the obviously intoxicated person to leave the area of a tavern and observed him get behind the wheel of a pickup truck. The court determined that the officer failed to take corrective action by not taking him into custody, instead, allowing him to take the wheel of the pickup truck and drive away. Bailey, 108 Wn.2d at 269.
In contrast, the officers here did not fail to take corrective action. Sgt. Martin attempted to arrest Grigsby for assault and possible kidnapping of Randel by drawing his gun, approaching Grigsby, leaning through the driver's open window, pointing the gun to Grigsby's chest, and ordering him to stop. Sgt. McMahon exited his vehicle, drew his gun, witnessed Sgt. Martin's arrest attempt, and notified other approaching units that there was a possible hostage in a car. But Grigsby drove off, seconds after the officers arrived, with police vehicles in pursuit.
Even viewing the evidence in the light most favorable to plaintiffs, there has been no showing of failure to take corrective action. Even if WSP Sgt. Martin's approaching Grigsby were deemed a mistake, as argued by plaintiffs, it was not a failure to take action. A failed attempt to arrest is not a failure to act.
B. Deadly Force
Gadd and Randel argue that the officers had a duty to use all force necessary to stop Grigsby, including deadly force, and that the failure to do so was a failure to take action and a breach of duty. The trial court ruled, as a matter of law, that police officers do not have a duty to use deadly force. Gadd and Randel cite to RCW 9A.16.040 and case law as granting officers authority to use reasonable
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