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Gadd v. State12/31/1997
force, including deadly force, under certain circumstances. They argue that this incident was one of those circumstances, and because they could use deadly force to stop Grigsby from fleeing, they had a duty to do so.
At least two statutes address a police officer's use of deadly force. RCW 9A.16.040(1)(i) states: "Homicide or the use of deadly force is justifiable . . . {t}o arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony . . . ." (Emphasis added). RCW 10.31.050 reads: "If after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest." (Emphasis added). These statutes are permissive, not mandatory. Nowhere do the statutes favor or require use of deadly force. Rather, these statutes merely authorize the police to use deadly force in certain circumstances.
Both state and federal caselaw recognize the need to allow the use of deadly force in certain circumstances, but also indicate that deadly force is a last resort, not a preference. For example, in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), the Supreme Court stated:
"The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. . . .
In Reese v. City of Seattle, 81 Wn.2d 374, 503 P.2d 64, 83 A.L.R. 3d 157 (1972), the court discussed a statute allowing the use of force, stating: "{W}e emphasize that great caution must be exercised by an officer in the use of deadly force and it must be resulted to by an officer only when all other reasonable efforts to apprehend a person from fleeing . . . have failed." Reese, 81 Wn.2d at 382-83 (emphasis added).
There is no action in tort for failing to use deadly force. At oral argument plaintiffs' counsel could cite to no case requiring the use of deadly force. We affirm the trial court's ruling that there was no legal duty to use deadly force.
C. Rescue Doctrine
The rescue exception to the public duty doctrine only applies where a governmental entity or its agent undertakes a duty to aid or warn a person in danger and fails to exercise reasonable care, and the offer to render aid is relied upon by either the person to whom the aid is to be rendered or by another who, as a result of the promise, refrains from acting on the victim's behalf. Chambers-Castanes v. King County, 100 Wn.2d 275, 285 n.3, 669 P.2d 451, 39 A.L.R. 4th 671 (1983).
Here, CPD and WSP came to the aid of Randel, whom they may have known was being held against her will. Gadd and Randel argue that a jury "may also believe that Sgt. Martin's actions caused others to refrain from acting . . . ." But no evidence was presented indicating anyone refrained from coming to Randel's aid because the WSP and CPD were there. The rescue doctrine is therefore inapplicable to this case.
CONCLUSION
Neither Gadd nor Randel can satisfy the elements of any exception to the public duty doctrine. Even assuming a statutory duty to arrest Grigsby, such duty was not breached when the officers tried to prevent Grigsby from leaving the scene, but failed. Whether the officers could have stopped Grigsby by some other means is irrelevant.
We therefore affirm the trial court's granting of Centralia's summary judgment motion because there was no duty to use deadly force to apprehend Grigsby. We reverse the trial court's denial of the State's summary judgment motion.
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