If a police officer notices shotgun shells lying on the ground while questioning a suspect and doesn’t pick them up, is he liable if the suspect retrieves them later and uses them to kill?
A unanimous state Supreme Court on Thursday said no.
The ruling overturned decisions by a King County judge and the state Court of Appeals, which had refused to dismiss claims filed by the widow of Michael Robb, a popular high-school tennis coach who was shot and killed by a deranged man in West Seattle on June 26, 2005.
Two Seattle officers had questioned the killer, Samson Behre, and a companion about a burglary in West Seattle just hours before. During the stop, the officers noted several shotgun shells at their feet but did not pick them up or inquire about them.
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The officers arrested the companion, who was wearing a stolen watch, but released Behre, who reportedly walked away mumbling to himself, according to court documents.
Witnesses later told police that Behre returned a few minutes later to pick up the shells, and the investigation concluded he used one of them to shoot Robb after flagging down his car not long after that.
Behre was found not guilty by reason of insanity of Robb’s death in 2008.
Records showed the officers, Kevin McDaniel and Pohna Lim, knew Behre was mentally disturbed and that the Police Department was aware he had a shotgun.
Shortly before the shooting, Seattle police were informed by Bellevue police that Behre, who was suspected in a Bellevue car theft, kept a shotgun under his bed.
Four days before Robb’s death, Lim had responded to Behre’s home on an assault investigation to find him talking in “deep demonic tones” about torturing and killing people. He was taken to Harborview Medical Center but released after the assault victim declined to talk.
Robb’s widow, Elsa Robb, sued the officers and the Police Department in King County Superior Court, alleging the officers’ failure to pick up the shells amounted to negligence and contributed to Robb’s death.
Elsa Robb argued that an officer has a duty to protect the public from reasonably foreseeable risks and not to take actions that make things worse.
The opinion authored by Chief Justice Barbara Madsen said that, while Robb’s interpretation of the law was correct, the facts in this case didn’t fit that interpretation.
“The police officers in this case did not provide the shells, nor did they give Behre the shotgun he used to kill Robb,” Madsen wrote.
While the court found that the “officers failed to remove a risk when they did not remove the shells,” it concluded “Behre would have presented the same degree of risk” than if the officers had never stopped him.
“What they said is that inaction is not a basis for liability,” said Seattle Assistant City Attorney Rebecca Boatright, who represented the officers and the Police Department.
Boatright said police departments and cities throughout the state will breathe a sigh of relief with the ruling, which closed a liability loophole left open by the Court of Appeals.
Timothy Leyh, the attorney representing Elsa Robb, said they were disappointed by the ruling.
“Still, we are pleased that we were able to clarify the law on when claims can be made against police,” he said.
“It’s just unfortunate that the facts didn’t fit that clarification.”
Mike Carter: email@example.com or 206-464-3706