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Widow Can’t Sue Over Ignored Shotgun Shells

OLYMPIA, Wash. (CN) - Police officers are not liable after a man was killed with shotgun shells they could have seized hours earlier, the Washington Supreme Court ruled.

Seattle police officers had stopped Samson Berhe on June 26, 2005, while investigating a burglary that occurred two blocks from Berhe's home.

The officers saw three to five shotgun shells on the ground as they questioned Berhe and his companion, Raymond Valencia, but they ignored the shells because they did not see how they connected to the robbery.

A neighbor reported that he saw Valencia throw the shells to the ground as the officers approached.

Lacking probable cause to make an arrest, the officers released Berhe after 20 minutes.

A witness said Berhe then returned to the scene where he had been questioned minutes saw and pick something up from the ground.

Two hours later, Berhe flagged down a car and shot the driver, Michael Robb, with a stolen shotgun.

Valencia later told police that he and Berhe had stolen the guns and ammunition a week earlier.

Robb's wife Elsa sued the two officers, Kevin McDaniel and Ponha Lim, and Seattle in 2008.

She claimed the officers had prior contact with Berhe on several occasions, including one incident that led to the involuntarily commitment of Berhe for a mental health evaluation. She said they were negligent for failing to remove the shells from a suspect known to be mentally deranged.

A King County judge refused to grant the city summary judgment, and a Washington appeals court affirmed, but the state Supreme Court unanimously reversed Thursday.

"The police officers in this case did not affirmatively create a new risk when they stopped Berhe and failed to pick up the nearby shells," Chief Justice Barbara Madsen wrote for the court. "The officers did not provide the shells, nor did they give Berhe the shotgun he used to kill Robb. The officers failed to remove a risk when they did not remove the shells. Berhe would have presented the same degree of risk had Officers Lim and McDaniel never stopped him. Simply put, the situation of peril in this case existed before law enforcement stopped Berhe, and the danger was unchanged by the officers' actions. Because they did not make the risk any worse, their failure to pick up the shells was an omission, not an affirmative act, i.e., this is a case of nonfeasance."

She noted that the Washington Association of Sheriffs and Police Chiefs asked in an amicus brief "whether law enforcement officers would be responsible for vehicles, baseball bats, alcohol, tire irons, and other instrumentalities they encounter around them that are subsequently used to harm others."

"Mere nonfeasance is insufficient to impose a duty on law enforcement to protect others from the criminal actions of third parties," the ruling states.

Seattle and the officers deserve summary judgment, and the trial court must dismiss the case on remand.

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