thank you your honor good morning i'm it please the court nathan roberts here on behalf of the appellant's the state of dustin willard and his parents an attempt to reserve four minutes for rebuttal and will watch the clock we're asking this court to reverse the district court court's erroneous grant of summary judgment and the erroneous exclusion of the human factors expert joel and gil this is a tragic case and i'd like to talk just briefly about the facts taken in the light most favorable to my client as they must be here and as they should have been at the district court level dustin willard a young man a homeowner a hard working blue collar young gentleman with no criminal history and nothing in the record to suggest he had a mental health problem or any animosity whatsoever to the police here is rustling around the outside of his home at one thirty in the morning has no reason to believe that the police would be on his property or near it because no crime has been committed there and and because he hasn't called police and hearing noises on his front porch opens the door to his home within his rights to do so varying the twelve gauge shotgun here's some yelling and before the time he has before he has time an  opportunity to understand who is yelling or why they're yelling at him eight hundred forty caliber bullets have riddled him in the front of his home and he dies there that day those are the facts of our case taken in the light most favorable to my client the appellant but the problem is that we have to look at this from the point of view of the police do we not in terms of the issue that's presented here of course we do and i think that's a great point and a great segue reasonable police officers on scene knew and in fact believed and should have known that they were dealing with a homeowner this is a person who once inside the residence they knew there was a person there but unlike a burglar instead of taking the t v the homeowner had turned the t v on us and was watching it i'm like a burglar who might try to distract the dog with a piece of meat the homeowner is talking to the dog by name encouraging him to behave aggressively towards the people outside the home so when the officers make contact with the person inside the home they have to do so with their own safety in mind but they also have to do so with the safety of the person who they know it's probably a home owner what specifically did the officers do or failed to do that creates a violation of one nine hundred eighty three they fail to announce their pres consistently with the fourth amendment never go inside the house they learned the homeowner outside the home and that's the same type of intrusion lock there's a knock on notice rule applied to events outside the house if police are trying to lure a homeowner outside the home they're not going to rule i'm not going to announce rule should announce we can't have american law enforcement officers dressing up as u p s men and saying they need a package signature and in this case the officers did essentially that they play game of ding dong ditch where they're knocking on the front door and then hiding out of the presence so that the first thing the second thing is that once they've created the situation where the homeowner comes out of the home unaware of who it is that he's dealing with in those circumstances the fourth amendment requires them to give the person on the porch full and fair opportunity to understand who they are meaning that their lawn foresman officers and more importantly what they want him to do which is to drop the gun and the record in this case was clear that there was not enough time on the clock to do that because within about six seconds the dispatcher one officer said this person is coming to the door and went within the scope of six seconds he was able to come to the door open the door the officer started yelling gun gun gun and then eighteen rounds are fired and then in that period of time the officers back on the victim on the radio saying shots have been fired so well the respondent and the city of everett at the district court level tried to make it seem like there was this big long exchange where they said police dropped the gun one that the disputed issue of fact and two they're simply not enough time for the picture they want to paint to have developed for this young man and i would hasten to point out that this court the thing that really strikes us about the case and the reason we wanted to pursue it is that there is no reasonable explanation for why mr willard would choose to point his firearm at police officers if he knew they were police officers this is a gentleman with no criminal history this is a gentleman who has committed no crime this is a gentleman who does not have a suicide wish or death wish the only plausible explanation for the factual scenario that unfolded that morning at one thirty am is that he came out onto his front porch expecting to find trespassers thieves or vandals was surprised to hear yelling coming from different corners of his yard and before he had a chance to appreciate what was going on had been area did like a piece of swiss cheese that's not consistent with the united states constitution it's not consistent with the washington state constitution and in that moment he was denied his fourth and fourteenth amendment rights but what information did the police officers have that brought them to the house they had a call of a quote unquote possible burglary in the neighborhood they did not have i don't believe an address and when they approached and surrounded the home i submit to this court they found no evidence consistent with a burglary in progress the one reference to anything that might even remotely be consistent with a burglary is a muddy shoe print and if this court looks at the record for the officer that says there was a muddy shoe print print it's at the bottom of the door which commonsense understanding is not consistent with someone trying to kick in a door it's consistent with a dirty door that someone has created with their shoe and they had an inordinate amount of evidence that told them this was the homeowner lights on a t v on talking to the dog and more importantly when the officers knocked on the door and made a noise at the front porch he came out this isn't the suspect fleeing from the back of the building trying to run through the alley he came out onto his front porch with the porch light on so there's a pile of evidence on one side of the scenario that any reasonable officer and judge gammons correct that's how we judge the situation any reasonable officer would look at and say this is probably a homeowner and there's no evidence other than the originating while he was still in the house that that's that's on the record there's a crescent i misunderstood that there was no contact and our position your honor is that there should have been no one called in called the number no one to no one called in no one called the reporting party back to get more information nobody got on the bullhorn or on the overhead and said hey this is the everett police department were surrounding the home you know you need to come out with your hands up none of the steps were taken and the police never identified themselves as law enforcement officers taken the position that mr willard came out he had the gun raised up pointing up instead of at the officers but isn't the record evidence that one point he level leveled the gun in the in the direction general direction of the officers that came down from being pointed at this guy to being pointed in a more perpendicular position toward the officers there is some evidence of that fact there's some evidence believe it said excerpts of the record thirty eight through forty from i believe it's officer franklin who said the gun was extended directly out neither up nor down but i believe he refers to it being in around the deceased's hips around mr willard's hips which unless you're in the movies is not how you would fire a shotgun so i think that's a disputed issue of fact and what i would say in response to the question or i what i think is the underlying purpose of the question your honor is this whether or not mr willard volitionally pointed the gun in the direction of the officers is a different question than whether he knowingly pointed it at a pool lease officer so just for an example from a different type of case in a fish and wildlife case if there is an armed officer out in the woods in a hunting area and he is rustling around in the bushes and a hunter trains  a gun towards that fish and wildlife officer that officer might have a person intentionally pointing a firearm at him but his obligation under the federal and state constitutions and basic principles of common sense is not to start yelling gun gun gun and firing back it's to say hey this is a fish and wildlife officer over here don't shoot you need to lower your weapon and to give the person on the other end of the hunting rifle a full and fair opportunity to appreciate the situation and comply with those commands and that's what was not done in mr willard's case there obviously is a difference between a constitutional violation and negligence what's the status of any potential negligence claims against the police department well those were erroneous lay dismissed by the district court as well in summary judgment or asking for a reversal of that portion of the order as well the district court iranian's lee concluded that the washington state waiver of sovereign immunity is somehow limited by the public duty doctrine and what i want to be clear about to this court is that the public duty doctrine is really only used in circumstances of an act of negligence or failure to act the public duty doctrine does not bar claims for negligence where the tortfeasor government agency or agent is actively creating dangers to members of the public in preparing for today's argument i did find one other case that i want to direct the court to declined review of involve police officers confronting two women at a motel and accusing them of being prostitutes and so forth and then telling them to get out of town and ever come back with more colorful language than a grace this court with and in the holding that court of appeal said we're not applying the public duty doctrine in these circumstances this isn't a case where the plaintiff is alleging breach of a nebulous duty to the public these officers were interacting with these two women and once they did so they have a duty to do so reasonably and if you look at the other cases some of which were cited in our brief the city of kelso case for example that's our supreme court case making clear that we have one of the broadest waivers of sovereign immunity in the country and it's a trap it accident case it's a it's a police officer  driving negligently and striking someone else's car and if you accept the analysis undertaken by the district court and that advanced by the city of everett you would go through the public duty doctrine and say well there's no express surance says there's not a special relationship here and so forth so this case can be dismissed the city if the kelso case says quite clearly that's not the law you don't need to identify an exception to the public duty doctrine when the officers are already interacting with someone decided to cough a case for that same pro precedent saying nothing officers can use deadly force when they're threatened with death or serious harm and so to me it's very it's very difficult another and shoot an officer so it's all very tragic but it's hard for me to see that the federal claim which leads me to wonder on the state law claim that you think are appropriate for sort of occasion to the washington state supreme court because a lot of what you're arguing as to do with policy of how police interact with  homeowners there they're really questions in the state of washington that the state supreme court can address whereas we can't thank you judge but that will that's a very valid option i don't believe that's necessary in light of the case law that's already on the books in washington talking about the distinction between active negligence and passive negligence and most notably the coffee case and the one i cited earlier with regard to the federal claims your honor it's a tough case i think that the cooper vs she h case from the fourth circuit is on point it talks about the eminent forsee ability of luring a homeowner out of his house in the middle of the night in a country where half of the homes have firearms on them and what can happen in those circumstances and although there are a lot of cases that talk about officers being free to use deadly force if they feel threatened i would encourage the court to look at those cases closely i believe that they all without question involve a circumstance where it should be obvious to the person threatening the officers that they're dealing with the police i'd like to reserve my remaining time for a bottle you may do some there's there's no reason to certify to the washington supreme court because the washes record has made it abundantly clear that the public duty doctrine is alive and well the munich case uni there's a there is a with i'm joined by several other justice concurrence of justice chambers correct so is there no issue left open by all that i unanimous decision and in that decision the court does a nice job of reviewing the law that has existed from the time of the end of sovereign immunity through two thousand and twelve in addition to that  public and furthermore in one thousand nine hundred four in the keats vs city of vancouver case another public duty case our state's rights state appellate court said as a general rule law enforcement activities are not reachable in negligence in washington judged silly below applied the right a standard here and that was to look at what the police activity was of the evening it was an exercise of the general police power the investigation of a nine one one of a possible burglary in progress when police are engaged in that kind of a response the public duty doctrine provides that there is no duty to anyone but the general public unless one of four exceptions applies the only exception that arguably could apply here is the special relationship exception that is this the exception that comes into play in cases like munich where there is a response to a nine one one call to the very person who's in trouble who's been threatened by something and then that can develop privity and express assurances of help and justifiable riots which are the three elements of the exception here no exception applies because the police  no individualized duty to mr willard they owed a duty to the general public so under washington law there's no negligence here's what's perhaps most important is that under undisputed facts of this case there's there's no negligence there's no fourth amendment problem there is no misconduct whatsoever the record in this case makes abundantly clear that these facts are undisputed a nine one one call reports of burglary in progress at the white house uniformed police arrive and quietly approach the house the police knock on the front door a man by the way not known to be anybody in particular to the police who by the way are often threatened when responding to problems at homes and this court has remarked more than once with respect to the dangers that police officers face when they're responding to problems at residences a man opens the door steps onto the porch carrying a shotgun with the barrel pointed up the police announce police drop the gun the testimony is that at least two of the police officers yell police several yelled drop the gun the man with the shotgun turns and levels it at the police officers most particularly at officer harney and officer showalter officer hardy is four to five feet away from him he testified that he leveled it at my chest he looked at me and i looked at him and he said i said loudly and clearly police dropped the gun and then the police fired because what about in relevance of the six seconds you heard your opposing counsel mention the that the record below reflected that from the time the door was opening until the shots was between seven and eight seconds between seven and eight seconds in other words it's the length of time that a world class sprinter runs most of one hundred yard dash it's the time in which an ordinary pace you can walk thirty to thirty five feet he came out on the porch he he had police officers fully uniform with badges on one of whom two of whom were within four or five feet of them and rather than dropping it he turned and he levelled at them there is no case decided by this court or the u s supreme court that suggests anything other that when the police are threatened with harm they're entitled to use deadly force these officers were threatened they're not required to wait until they're shot councilman has argued rates it's raised the notion of what can a possible explanation be for this gentleman coming out there and ending the shock and out of this was full nose except he had a point to reading it was a level at which a lot of people are comatose he had the testimony was that he spent the evening drinking heavily that local bars we witnesses have talked about he was drunk very drunk he returned home likely that nine one one call was called in because he couldn't get into his house he was bashing at the door and when the officers arrived they saw muddy boot prints on the door consistent with somebody trying to knock it down they don't know that that's  homeowner he owns a lot of weapons the testimony was he grabbed a loaded shotgun with a point two six blood alcohol level and walked out on the porch that's the explanation that the smart the is standard practice whenever there is an officer involved shooting is a cure we go back to just a minute as i as i read the record as i read the the the brief that the gist of the negligence action is an accusation negligence actually preceded mr willard's appearance on the on the doorstep i maybe it maybe it goes beyond that but many of the negligence allegations here are that the police should have done things prior to the time that he presented himself we talked in the in your opponent's argument about for example calling in for having the police dispatcher call into the home did the police is there is there any record evidence that police have the ability to know what the phone number was and to call in when they had for example at her boys who sort of man talking to the dog there's a very good reason why under fourth amendment law this court has been very specific the state that the issue is not about good or bad tactics it's not about choosing in hindsight twenty twenty hindsight the best alternative it's putting yourself in  position of a police officer making decisions on the ground investigating these the testimony in this case is that these police officers arrived at a reported burglary in progress they approached the house examined the perimeter a couple of them heard a dog barking in the art of voice but they couldn't tell what was said they observed the porch light was on they observed there was a light on inside didn't see anybody one at least one could hear television on again who knows what that means it as as the police officers testified it might be the homeowner inside it might be someone else might be no one inside lights and television don't necessarily reflect any of that they didn't see anybody inside they made a determination step one in investigating what's going on is knock on the door the homeowner comes out and says what's up they say hey are you ok there's a new problem and life goes on for negligence there has to be a breach of a standard of care of some sort one reason we know one reason we know that the public duty doctrine washington place are so there is no duty and no is that the notion of sovereign immunity was to put the state and county and city and police in the same position as an ordinary citizen for a lot of purposes for example premises liability by the county same position now as they would be with an ordinary citizen an ordinary citizen is not intrusted with investigating burglaries in progress so there's no standard of care out there for an ordinary what an ordinary citizen would do and the law in this state is if there's no if there's a duty it's the same duty as the ordinary citizen and the rationale of the cases and the state of washington for public duty doctrine in police activities is precisely that the police have a generalized duty to the public and they only take on a responsibility and a duty to an individual in very special circumstances for example the washroom case which is cited by a pla is some kind of a problem in a response there can be a special relationship develop between the police department or city and the individual because they've called they have privity there have been assurances made and then there's been some kind of a justifiable reliance and negligence here there's no such thing here there's no such thing and there's no dispute about the facts that i've s it's hard to imagine a more plain vanilla approach and cautious approach to investigation of an unknown potential burglary in progress than simply knocking at the door no private citizen would ever be charged with anything or found liable for in tort for knocking on the door and no police officer should be wilson the arkansas in its progeny are all about knocking in announcing when you're entering there's no case says a police officer can't knock on the door in carrying out his or her reasonable duties no case in appellant's brief they wrongly state a lot of things and one of the things i want to point out for sure is they wrongly state in their brief that there is a dispute of material fact with respect to whether that shotgun was aimed at the police in the district court they were asked by judge repeatedly whether they had any evidence of that because he wanted to fulfill his duty as a just record judge make sure there's not object of evidence that calls that into question because when a gun is pointed to a police officer it's unequivocally clear that officers in title shoot they had nothing to present there's a reason that they didn't provide those materials to judge still in the first instance because they don't support their case and they have misstated them in the brief they say for example that they're ballistics expert matthew no dale has testified that it's not possible that the gun was aimed at the police his testimony couldn't be farther from that he testified unequivocally it's not possible for him to know where the barrel was pointed that's what he said they flipped it exactly hundred eighty degrees though the one thing i want to emphasize with this court is these facts that i recited these facts coming out with a gun holding it up leveling out the officers there unequivocally undisputed and furthermore mr know dale who in his deposition which i took he recognized in that deposition his expert report was wrong and he issued a revised report and in that revised report his ballistics show that the body of mr willard when he was shot in the chest from the front was aimed precisely at where officers harney into a water standing a few feet away and his ballistics report then showed that the shot he took shots from the side from officer a dose of it who was standing precisely off to the side and so everything about his list ex report it his testimony is entirely consistent with the undisputed fact that that shotgun was levelled at the police officers and furthermore for officer franklin whose testimony they failed to produce below until bush reconsideration he states stated unequivocally in that testimony that when mr  he faced directly where mr franklin was which was right behind where officer harney was the was across the street and he was front on with the barrel pointed level then out again one hundred percent consistent with officer harney with officer shoulder with officer or dosage thank you counsel your time has expired mr roberts you have some reserve time is a few ticks of the clock if i may your honor respond to some of the things coun said first i want to address this issue that there is no dispute about the statement made allegedly that it was we are the police dropped the gun experts from their effort record it page forty six were that there were commands to quote drop it and they were quote were followed without delay by rapid and repeated gunfire from officers there's the statement of cory goldman the excerpts of the records that two eight nine female officer quote yelled gun and then all the officers started yelling drop the gun drop the gun more than once and then i just heard a whole bunch of firing and there's most importantly at the testimony of officer franklin which is a page forty from the excerpts of the record where he says the requote only a couple of seconds quote couple of seconds regard to the ballistics testimony and that's at the supplemental x excerpt of the records at sixty four sixty five the expert was asked if it was his analysis was consistent with mr willard leveling the shotgun and officer harney and the answer on page sixty five of the excerpts supplemental excerpts that line four i would say the answer is no because willard would not have been facing southward down the stairs as our dose of it is shooting him in his back shoulders and such and back the l time has expired thank you on his case just argued will be submitted for decision and the court will