Sina Ghodsee, V. City Of Kent, Et Ano

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SINA GHODSEE, an individual, through ) No. 82897-5-I
Litigation Guardian ad Litem, JOSHUA )
BROTHERS, ) DIVISION ONE
)
Appellant, ) PUBLISHED OPINION
)
)
and )
)
SHAHRBANOO GHODSEE, an individual, )
)
Plaintiff, )
)
v. )
)
CITY OF KENT, a political subdivision of )
the State of Washington, and KING )
COUNTY, d/b/a King County Crisis and )
Commitment Services, )
)
Respondents. )
)

HAZELRIGG, J. — Sina Ghodsee appeals from an order granting summary

judgment in favor of King County and the City of Kent. Ghodsee sued in

negligence, alleging both government entities failed to exercise reasonable care in

detaining him under the involuntary treatment act.1 Ghodsee fails to meet his

burden of raising a material issue of fact as to each of the essential elements of

1 Ch. 71.05 RCW.
No. 82897-5-I/2

negligence or demonstrate that the entities were not entitled to statutory immunity.

Accordingly, summary judgment dismissal was proper and we affirm.

FACTS

On Friday, June 23, 2017, Shahrbanoo Ghodsee2 contacted King County

Crisis and Commitment Services (KCCCS) with concerns about her son, Sina

Ghodsee. Shahrbanoo reported Ghodsee was not taking his medication, was

“agitated” and “delusional,” and she had left the home to stay elsewhere. Four

days later, a “Designated Mental Health Professional” (DMHP)3 called to schedule

an appointment for a team of DMHPs to meet with Shahrbanoo at the Ghodsee

home. The DMHPs intended to interview Ghodsee pursuant to the involuntary

treatment act (ITA), but were unsuccessful and eventually left the home after

Ghodsee pointed “what appeared to be a table leg at [them] like a gun.” They

called the police; officers from the Kent Police Department (KPD) responded and

attempted to make contact with Ghodsee, but were similarly unsuccessful and

disengaged.4 On Thursday, June 29, a DMHP filed a Petition for Initial Detention

(Non-Emergency) in King County Superior Court, which the court granted.

On Friday, June 30 and again on Saturday, July 1, a team of DMHPs and

several officers from KPD went back to the Ghodsee home but were ultimately

unable to detain Ghodsee. On Sunday, July 2, KPD was dispatched to the

2 Shahrbanoo is a plaintiff in the case but not a party to the appeal. We refer to her by her
first name and her son, the appellant, as Ghodsee. No disrespect is intended.
3 Subsequent amendments to the involuntary treatment act replaced the term “Designated

Mental Health Professional,” or DMHP, with “Designated Crisis Responders” (DCRs). This opinion
uses the terminology applicable at the time of the events at issue.
4 KPD reported Ghodsee swung a skateboard at them “like a bat” when an officer attempted

contact.

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Ghodsee home after a neighbor called law enforcement concerned that Ghodsee

was threatening someone and possibly carrying a rifle. The caller could not state

with any certainty that he saw a gun, and KPD never observed a crime, so the

officers eventually left without attempting to contact Ghodsee. The next week, on

Friday, July 7, KPD officers formulated a plan to take Ghodsee into custody when

he left his home to get groceries or cigarettes. Around midnight on July 9, the

manager at a local grocery store called KPD to inform them Ghodsee was on site,

but by the time officers arrived Ghodsee had left.

On Monday, July 10, KPD received two emergency calls from Ghodsee’s

neighbors, reporting Ghodsee had shot at the neighbor’s occupied home. KPD

responded and saw Ghodsee in the window of his home with a rifle raised, pointed

in the direction of the officers. Two officers simultaneously fired, and Ghodsee

disappeared from sight. Officers on the scene used a drone to see inside of the

home, where they observed Ghodsee laying on the floor. Ghodsee was taken into

custody. He sustained a gunshot wound to the head, surviving but suffering

significant and life-changing injuries.

On May 28, 2020, Ghodsee, through a litigation guardian ad litem, and

Shahrbanoo filed a civil complaint against the City of Kent (City). They later

amended their complaint to add King County (County), doing business as KCCCS,

as a defendant. On May 21, 2021, both defendants moved for summary judgment

dismissal on the basis of the public duty doctrine and claims of statutory immunity.

The motion was heard on June 18, 2021. The trial court granted summary

judgment for both defendants on July 8, 2021. Ghodsee timely appeals.

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ANALYSIS

I. Standard of Review

This court reviews a summary judgment order de novo, engaging “in the

same inquiry as the trial court.” Wallace v. Lewis County., 134 Wn. App. 1, 12,

137 P.3d 101 (2006). Like the trial court, this court “review[s] all evidence and

reasonable inferences in the light most favorable to the nonmoving party,” affirming

if there are no genuine issues of material fact “and the moving party is entitled to

judgment as a matter of law.” Dalen v. St. John Med. Ctr., 8 Wn. App. 2d 49, 57,

436 P.3d 877 (2019). A genuine issue of material fact exists if reasonable minds

could differ on facts which control the outcome of the proceeding. Id. at 58.

A negligence action contains four elements: (1) duty, (2) breach, (3) injury,

and (4) proximate cause. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552,

192 P.3d 886 (2008). “If any of these elements cannot be met as a matter of law,

summary judgment for the defendant is proper.” Id.

II. Duty of Care and the Public Duty Doctrine

Ghodsee first argues both entities owed him a duty of care. He contends

the County owed him (1) a “take charge duty” under the special relationship

exception to the public duty doctrine, and (2) a duty to enforce the non-emergency

detention order (NED) issued by the trial court. He asserts the City owed him a

duty (1) to exercise reasonable care in discharging its responsibilities, and (2) to

enforce the NED. This court reviews “the existence of a duty as a question of law”

de novo. Washburn v. City of Fed. Way, 178 Wn.2d 732, 753, 310 P.3d 1275

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(2013). Duty is a “threshold issue.” Mita v. Guardsmark, LLC, 182 Wn. App. 76,

83, 328 P.3d 962 (2014).

In evaluating the duty of a governmental entity, we must also consider the

public duty doctrine. Washburn, 178 Wn.2d at 753–54. To succeed in a

negligence claim against a governmental entity, the plaintiff must demonstrate the

government owed a duty to the individual plaintiff, rather than the public at large.

Id. at 754. “[A] duty to all is a duty to no one.” J & B Dev. Co. v. King County, 100

Wn.2d 299, 303, 669 P.2d 468 (1983) (overruled on other grounds by Meaney v.

Dodd, 111 Wn.2d 174, 179–80, 759 P.2d 455 (1988)). While similar to sovereign

immunity, the public duty doctrine uniquely “recognizes the existence of a tort,

authorizes the filing of a claim against a [government entity] and also recognizes

applicable liability subject to some limitations.” Id. This differs from sovereign

immunity, which denies all liability. Id.

There are several exceptions to the public duty doctrine, which are “used

as ‘focusing tools’ to determine whether the public entity had a duty to the injured

plaintiff.” Taggart v. State, 118 Wn.2d 195, 218, 822 P.2d 243 (1992). The four

exceptions are (1) legislative intent, (2) failure to enforce, (3) rescue doctrine, and

(4) special relationship. Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 549

n.7, 442 P.3d 608 (2019); 5 see also Cummins v. Lewis County, 156 Wn.2d 844,

853 n.7, 133 P.3d 458 (2006).

5 Beltran-Serrano noted the public duty doctrine does not lessen the government’s duty of
reasonable care in direct interactions with others, specifically law enforcement’s “duty to refrain
from directly causing harm to another through affirmative acts of misfeasance.” Id. at 550.

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A. Whether the County Has a Duty Based on a Special Relationship

Ghodsee first argues the County owed him an individualized duty akin to

the take charge duty or provider-patient special relationship exception to the public

duty doctrine. He specifically alleges the language and posture of the NED order

created a take-charge-like relationship between Ghodsee and the DMHPs.6

Under the Restatement (Second) of Torts § 315 (Am. Law Inst. 1965), there

is generally no duty to prevent a third party from harming another. If, however, “a

special relation exists between the actor and the third person,” there may be a duty

to “control the third person’s conduct.” Id. One such special relationship arises

when an actor “takes charge of a third person whom [they] know or should know

to be likely to cause bodily harm to others if not controlled,” creating “a duty to

exercise reasonable care.” Id. at § 319. Our courts have held “this duty extends

to self-inflicted harm.” Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 639, 244

P.3d 924 (2010). Our courts have recognized a special relationship, separate from

a take charge duty, between mental health providers and patients under § 315 of

the Restatement. See Petersen v. State, 100 Wn.2d 421, 426–27, 671 P.2d 230

(1983).

In Estate of Davis v. Department of Corrections, the Washington State

Supreme Court considered whether there was a special relationship between an

6 The respondents argue this issue is not properly before this court because it was not
raised in the trial court. This court only considers issues raised on summary judgment before the
trial court “to ensure that we engage in the same inquiry as the trial court.” Kave v. McIntosh Ridge
Primary Rd. Ass’n, 198 Wn. App. 812, 823, 394 P.3d 446 (2017). However, Ghodsee did argue
duty based on the special relationship exception before the superior court and the record provided
is sufficient for us to consider this issue. See Turner v. Dep’t of Soc. & Health Servs., 198 Wn.2d
273, 293 n.15, 493 P.3d 117 (2021) (citing RAP 2.5(a) (court reached an issue not brought before
the trial court on summary judgment)).

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individual on community custody and a mental health counselor who conducted

“an initial assessment” to evaluate whether counseling would be beneficial to the

person under supervision by the Department of Corrections. 127 Wn. App. 833,

837, 113 P.3d 487, 491 (2005). The court found there was no special relationship

because the counselor met with the individual “only one time,” to provide an initial

assessment. Id. at 842. This brief interaction was “not a definite, established, and

continuing relationship that would trigger a legal duty.” Id.

Our Supreme Court then reviewed whether there was a special relationship

between a mental health professional and patient in Volk v. DeMeerleer. There,

the court held a psychiatrist and their outpatient client had a nine-year relationship

which triggered a duty under § 315 of the Restatement. Volk, 187 Wn.2d 241, 274,

386 P.3d 254 (2016). More recently in Konicke v. Evergreen Emergency Services,

P.S., this court analyzed the existence of a special relationship between a patient

and an emergency health provider. We found there was no “definite, established,

and continuing” relationship where the patient made a single visit to the emergency

room. 16 Wn. App. 2d 131, 138, 480 P.3d 424 (2021) (quoting Volk, 187 Wn.2d

at 256).

The statutory role of the DMHP, now “Designated Crisis Responder” (DCR),

is to investigate and evaluate information, determine whether to file a petition for

initial detention or involuntary outpatient evaluation, and personally interview the

individual to determine if they will voluntarily receive evaluation and treatment. See

former RCW 71.05.150 (2015), amended by LAWS of 2016, ch. 29 § 211. Even

viewing the evidence in the light most favorable to Ghodsee, there was no definite,

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established, and continuing relationship here. The first indirect interaction the

DMHPs had with Ghodsee was on June 23, when Shahrbanoo contacted KCCCS.

A DMHP team attempted to conduct an initial assessment on June 28 but never

made direct contact with Ghodsee. After the DMHPs heard yelling inside and saw

Ghodsee holding “something” that looked like a rifle in an upstairs window, they

left. Based on the information available to the DMHPs through those limited

interactions, the County filed a petition for non-emergency detention the next day,

June 29, but did not attempt to make contact with Ghodsee. The DMHP team next

had limited interaction with Ghodsee on June 30, when they accompanied KPD to

the home in an attempt to effectuate the NED order. They did not make direct

contact. The DMHPs returned again on July 1, with police, but again did not make

direct contact with Ghodsee due to safety concerns. After that date, the DMHPs

never returned to the home or made direct contact with Ghodsee at any point prior

to the shooting.

Based on the statutory role of DMHPs, now DCRs, and the actions of the

specific DMHPs at issue here, there was no continuing, definite, and established

relationship giving rise to a legal duty. The DMHP-potential detainee relationship

is more akin to a patient and emergency room provider (Konicke) or a client and

mental health provider in the context of an initial assessment (Davis), and less

similar to a nine-year outpatient therapeutic relationship between a psychiatrist and

patient (Volk). If the DMHPs had any direct contact with Ghodsee, their role would

have been limited to conducting an investigation and filing a petition for detention

if they felt it was called for. See former RCW 71.05.150. Viewing the facts in the

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light most favorable to Ghodsee as we must when reviewing an order on summary

judgment, the period of time during which the DMHPs were tangentially involved

with Ghodsee was brief, lasting only from June 23 until July 10. This differs starkly

from cases where our courts have found a special relationship.

The limited role of the DMHP as defined by statute, and the brief relationship

between Ghodsee and the specific DMHPs at issue here, does not rise to the level

of a “definite, established, and continuing relationship” to support a legal duty

within the framework of the public duty doctrine.

B. Whether the County or City Has a Duty Under the NED Order

In analyzing whether a “take charge” duty under § 319 of the Restatement

exists, we first look to the nature of the relationship. Davis, 127 Wn. App. at 842.

In Davis, the court held “[t]he two most important considerations are the court order

placing the corrections officer in charge and the statutes giving the officer the

power to act.” Id. Our courts have applied this duty in the context of “various types

of community supervision programs,” including the duties of community

corrections officers, city probation counselors, county pretrial release counselors,

and county probation officers. See Harper v. State, 192 Wn.2d 328, 342, 429 P.3d

1071 (2018) (internal citations omitted). Ghodsee asks us to extend the application

of this type of duty outside the context of corrections or community supervision

based on the NED order.

Ghodsee argues the language of the NED order created a take charge duty

by directing DMHPs and KPD to detain him. However, we consider a court order

and statutory authority to act. See Davis, 127 Wn. App. at 842, see also Miller v.

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Pierce County, No. 53344-8-II (Wash. Ct. App. Feb. 9, 2021) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2053344-8-II%20Unpublished%20O

pinion.pdf (county owed a duty under its statutory authority to confine an individual

“and the court’s order requiring it to do so” pursuant to a judgment and sentence).7

Former RCW 71.05.150(4) only grants DMHPs authority to “notify a peace officer

to take such person or cause such person to be taken into custody.” They have

no statutory authority nor statutory mandate to physically detain an individual

themselves. Rather the statute is clear that they “may notify” a peace officer to

take an individual into custody. See Id.

The language of the NED order is similarly clear. The superior court found

Ghodsee “presents a likelihood of serious harm to others,” but did not find he

presented a likelihood of harm to himself. The court ordered that Ghodsee “shall

be detained by a [DMHP]” and further ordered “any peace officer shall take the

respondent into custody.” Washington case law has consistently held “‘that the

word “shall” in a statute is presumptively imperative and operates to create a duty.’”

In re Dependency of T.P., 12 Wn. App. 2d 538, 548, 458 P.3d 825 (2020) (quoting

In re Parental Rights to K.J.B., 187 Wn.2d 592, 601, 387 P.3d 1072 (2017)).

Likewise, the plain language of the court order directing the government to detain

Ghodsee creates a legal duty. However, this duty is one owed to the public at

large, not an individual duty owed to Ghodsee. See Osborn v. Mason County, 157

Wn.2d 18, 28, 134 P.3d 197 (2006) (“County has a ‘duty’ to protect its citizens in

7 We may utilize unpublished opinions when “necessary for a reasoned decision.” GR
14.1(c). Miller provides a helpful analysis of duty in the context of a court order.

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a colloquial sense, but it does not have a legal duty to prevent every foreseeable

injury.”).

For example, in Miller, the County had a duty to an individual under the

special relationship and take charge doctrines where the County was authorized

by statute to confine an offender pursuant to a criminal conviction and a superior

court “order required the County to ensure Robinson reported for [electronic home

monitoring] or reported to the jail on August 5, 2016.” No. 53344-8-II, slip. op. at

7 (analyzing dismissal of a complaint under CR 12(b)(6)). A critical factual

distinction from the case before us is that Miller was ordered remanded to the

custody of the county pursuant to a felony judgment and sentence and

accompanying warrant of commitment. Id. at 2–3. In contrast, the NED order did

not direct any specific law enforcement agency to detain Ghodsee, nor did it dictate

any particular date or mechanism for detaining Ghodsee.

In evaluating a take charge relationship, the inquiry is specific to “the

relationship” between the government actor and tortfeasor.8 Hertog, ex rel. S.A.H.

v. City of Seattle, 138 Wn.2d 265, 279, 979 P.2d 400 (1999). Hertog analyzed the

relationship between a pre-trial probation officer and probationer, holding that

because the probation officer “is clearly in charge of monitoring the probationer [ ]

and has a duty to report violations to the court,” there is a take charge duty. Id.

The probation officer-probationer relationship differs significantly from an officer

ordered to detain an individual under the ITA. There is no ongoing, monitoring

8Our courts have held this duty includes protection from self-inflicted harm. Gregoire, 170
Wn.2d at 639. Ghodsee alleges the County and City had a duty to protect him from self-inflicted
harm under the take charge duty.

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relationship and no duty to report actions to the court. In a probation officer-

probationer relationship, “two of the most important features” are a court order

placing an offender “on the supervising officer’s caseload and the statutes that

describe and circumscribe the officer’s power to act.” Couch v. Dep’t of Corr., 113

Wn. App. 556, 565, 54 P.3d 197 (2002). This individualized responsibility differs

from the general language in the NED order, and there is no similar language in

the order or in the ITA that “describe[s] and circumscribe[s]” how the officers may

act in effectuating the detention order. Id.

There are three historical purposes underlying the public duty doctrine: (1)

preventing excessive liability for government entities, (2) avoiding “hindering the

governing process,” and (3) providing “a mechanism for focusing” the element of

duty. J & B Dev. Co., 100 Wn.2d at 304. This doctrine balances the rights of an

injured plaintiff with the need to limit governmental liability “[b]ecause

governments, unlike private persons, are tasked with duties that are not legal

duties within the meaning of tort law.” See Washburn, 178 Wn.2d at 753, see also

Osborn, 157 Wn.2d at 28 (“the public duty doctrine helps us distinguish proper

legal duties from mere hortatory ‘duties.’”).

Ghodsee bears the burden to demonstrate the government owed him an

individual duty, rather than a duty to the public at large, in order to survive summary

judgment. Viewing the facts in the light most favorable to Ghodsee, he fails to

show an actionable duty based on the NED order as to either the County or the

City. For this reason, his negligence claim fails as a matter of law.

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C. Law Enforcement Duty of Care

Ghodsee also argues KPD breached its duty of reasonable care in its direct

interaction with him by failing to detain him more swiftly after the NED order was

issued. His claim is essentially that, had he been detained sooner, he would not

have been shot by KPD or suffered the serious injuries that resulted from the

shooting. Generally, “‘every individual owes a duty of reasonable care to refrain

from causing foreseeable harm in interaction with others,’” including law

enforcement officers. Mancini v. City of Tacoma, 196 Wn.2d 864, 879, 479 P.3d

656 (2021) (quoting Beltran-Serrano, 193 Wn.2d at 550). Washington case law

has held this duty applies in direct interactions with individuals. See, e.g., Watness

v. City of Seattle, 16 Wn. App. 2d 297, 307, 481 P.3d 570 (2021) (“an officer owes

a legal duty to exercise reasonable care when engaging in affirmative conduct

toward others.”) (emphasis added)); Robb v. City of Seattle, 176 Wn.2d 427, 439,

295 P.3d 212 (2013) (“In order to properly separate conduct giving rise to liability

from other conduct, courts have maintained a firm line between misfeasance and

nonfeasance.”).

Police have a duty to exercise reasonable care when discharging their

duties, including effectuating court orders. See Mancini, 196 Wn.2d at 880. This

necessarily includes the exercise of discretion by law enforcement as to how to

effectuate those court orders. There is nothing in statute or in the NED order that

required KPD to enforce the detention order in any particular way; the officers had

discretion to determine the safest way to carry out the court’s order. Their actions

in effectuating the NED order were further constrained by various constitutional

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considerations that necessitate a flexible response based on the particular

circumstances of the interaction.

In Konicke, this court declined to recognize a claimed duty for emergency

healthcare providers to detain patients under the ITA in part because it would

“seriously undermine[] the legislative goal of safeguarding the individual rights of

such patients.” 16 Wn. App. 2d at 144. Likewise, finding legal liability on the part

of a governmental entity based on detaining an individual would also seriously

undermine this legislative goal. In Robb, our Supreme Court discussed the

distinction in tort law between misfeasance and nonfeasance, holding that where

officers “did not affirmatively create a new risk,” the act was nonfeasance and did

not give rise to liability. 176 Wn.2d at 437–39. To hold otherwise would lead to

“an unpredictable and unprecedented expansion of . . . liability.” Id. at 439.

As Konicke noted, “chapter 71.05 RCW was not enacted for the particular

benefit of third parties injured by people suffering from serious behavioral health

disorders but, rather, for the benefit of people with behavioral health disorders

themselves.” 16 Wn. App. 2d 140–41. While the legislative intent of the statute

includes “‘protect[ing] public safety through use of the parens patriae and police

powers of the state,’” applying broad liability “runs counter to the statutory scheme,

which specifically limits liability for the detention decisions made by emergency

healthcare providers” and government actors. Id. at 143 (quoting RCW

71.05.010). Additional legislative intent expressed in former RCW 71.05 is

preventing inappropriate or indefinite commitment, safeguarding individual rights,

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and providing continuity of care.9 Allowing for broad liability of government entities

does not support any of these purposes, and as this court noted in Konicke,

expanding liability seriously undercuts the purpose of safeguarding individual

rights.

To expand liability of a law enforcement agency based on failure to detain

pursuant to the ITA or a NED order in a particular way or within a particular

timeframe would undermine the very language of the ITA itself, which seeks to

safeguard individual rights. The risk that imposing liability “could encourage” law

enforcement “to detain patients merely to avoid potential liability to third parties,”

presents a significant challenge to the individual rights of potential detainees who

are protected under the ITA. See Id. at 144.

Importantly, the NED order only ordered Ghodsee to be detained by law

enforcement. Exercising reasonable care, particularly in the constantly evolving

circumstances of a mental health crisis, necessitated discretion on the part of

police in terms of how that order would be carried out. The existence of the NED

did not suspend Ghodsee’s right to privacy in his home, for example, or to be free

from search or seizure in the absence of either a warrant or applicable exception

to state and federal warrant requirements.10 While a neighbor reported Ghodsee

“was threatening some unknown individual and had a gun,” when officers

responded, the neighbor admitted he did not see Ghodsee “directly threatening

9 The statements of legislative intent expressed in the former version of RCW 71.05.010,

applicable at the time of the incident, are identical to those expressed in the current version
discussed in Konicke.
10 “Officers must have a warrant or a well-established exception to the warrant requirement

before intruding into a home.” City of Shoreline v. McLemore, 193 Wn.2d 225, 226 (2019).

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anyone nor could he be sure he saw a firearm.” The City argues that no exception

to the warrant requirement applied, as there was no probable cause that a crime

had occurred which would have been a prerequisite to arresting Ghodsee11 on that

date and there were no exigent circumstances to justify entering the home.12

Contrary to Ghodsee’s assertion, the NED order does not function as a warrant or

otherwise suspend Ghodsee’s individual rights protected by warrant requirements

and other constraints on the actions of law enforcement.

Viewing the evidence in the light most favorable to Ghodsee, he fails to

demonstrate that the City owed him a duty beyond the exercise of reasonable care,

or that there exists a material issue of fact as to this claim, and summary judgment

in favor of the City is proper.

III. Whether the County or City Is Entitled to Immunity Under Former RCW
71.05.120

Ghodsee next alleges the trial court erred in finding that both government

entities had immunity under former RCW 71.05.120. (Laws of 2016, ch. 29 § 208).

He concedes the statute applies to the County’s “belated decision to detain Sina,”

but asserts that it does not apply to its actions “in the execution of the detention

order.” Ghodsee argues he raised a material question of fact as to whether the

County was grossly negligent sufficient to defeat any claim of statutory immunity.

11 Probable cause alone is not sufficient for a warrantless search, but may support an
arrest, which in turn supports a search incident to arrest. State v. Tibbles, 169 Wn.2d 364, 369, 236
P.3d 885 (2010); State v. Salinas, 169 Wn. App. 210, 216, 279 P.3d 917 (2012).
12 “The exigent circumstances exception to the warrant requirement applies where

‘obtaining a warrant is not practical because the delay inherent in securing a warrant would
compromise officer safety, facilitate escape[,] or permit the destruction of evidence.’” Tibbles, 169
Wn.2d at 370 (internal quotation marks omitted).

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For both entities, Ghodsee contends the statute is inapplicable because the

allegedly negligent acts were unrelated to the “decision of whether to . . . detain”

Ghodsee as the superior court had already made that decision when it signed the

NED order. Former RCW 71.05.120 states:

(1) No officer of a public or private agency, nor the
superintendent, professional person in charge, his or her
professional designee, or attending staff of any such agency, nor any
public official performing functions necessary to the administration of
this chapter, nor peace officer responsible for detaining a person
pursuant to this chapter, nor any designated crisis responder, nor the
state, a unit of local government, an evaluation and treatment facility,
a secure detoxification facility, or an approved substance use
disorder treatment program shall be civilly or criminally liable for
performing duties pursuant to this chapter with regard to the decision
of whether to admit, discharge, release, administer antipsychotic
medications, or detain a person for evaluation and treatment:
PROVIDED, That such duties were performed in good faith and
without gross negligence.

The statutory language addresses detention, but also expressly includes a

variety of other duties—admitting or discharging a patient, releasing a patient, and

administering medication. Id., see also Konicke, 16 Wn. App. 2d at 145–46. These

duties are more than mere mental decisions, but encompass the acts taken to

effectuate those decisions. Potential civil liability does not only arise from the

choice to administer medications or detain an individual, but also the acts taken to

carry out those decisions. To hold otherwise would result in an unlikely or illogical

outcome. “We interpret statutes to avoid unlikely, strained, or absurd

consequences.” Michel v. City of Seattle, 19 Wn. App. 2d 783, 792, 498 P.3d 522

(2021). And while, as Ghodsee notes, we do “generally construe statutory

immunities narrowly,” if “the plain meaning is unambiguous, statutory construction

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is inappropriate.” Leishman v. Ogden Murphy Wallace, PLLC, 196 Wn.2d 898,

906, 479 P.3d 688 (2021).13 The statute uses the phrases “performing functions”

and “performing duties,” which clearly intends to capture actions taken “with regard

to” the decisions made as to detention and treatment of a person under the ITA.

The plain meaning of the statute is unambiguous.

Because the plain language of the statute provides immunity for actions as

well as decision-making, both the City and County are entitled to statutory

immunity for their actions “with regard to” the decision to detain and Ghodsee must

demonstrate gross negligence in order to overcome immunity. However, because

Ghodsee fails to demonstrate either entity owed him an individualized duty of care

as a matter of law, we need not reach the issue of gross negligence. To survive

summary judgment, Ghodsee must raise a material issue of fact as to all four

elements of negligence: duty, breach, damage and causation. Because the failure

to meet his burden on the element of duty is fatal to his claim, we need not review

the other elements.14

13 Per Montoya-Lewis, J., with three justices concurring and one justice concurring

separately.
14 The City dedicated a portion of its brief, and its oral argument, to the felony defense to

Ghodsee’s excessive force and assault claims. RCW 4.24.420 provides a “complete defense” to
an action against law enforcement for personal injuries or death if the injured person “was engaged
in the commission of a felony at the time.” The trial court found Ghodsee’s excessive force and
assault claims (Cause of Action V) were barred under RCW 4.24.420. Ghodsee does not assign
error to this decision, and states explicitly he is not advancing his excessive force argument on
appeal.
While Ghodsee’s reply brief contains a heading stating “Trial Court Erred in Applying the
Felony Defense,” RCW 4.24.420 was applied only to the excessive force and assault claims, which
Ghodsee concedes he is not appealing. The City likewise does not assign error to the trial court’s
limitation of RCW 4.24.420 to assault and excessive force. As such, we decline to reach the merits
of this issue.

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Ghodsee suffered immense injuries as a result of a devastating situation.

He survived a gunshot wound to the head, but suffered a traumatic brain injury and

severe cognitive impairments. He may never regain full independence. We

acknowledge that Ghodsee and his family have suffered, and we are aware that

by affirming the trial court, his civil claim is dismissed. We, however, also

recognize that responding to mental health crises necessarily requires flexibility

and individualized responses.

Our state legislature has made clear that officers must retain discretion as

they interact with individuals in our communities so that they may be appropriately

responsive to the circumstances presented to them. SUBSTITUTE H.B. 1735, 67th

Leg., Reg. Sess. (Wash. 2022).15 The law recognized that specific de-escalation

tactics “[d]epend[] on the circumstances,” (Section 2), but also clarifies that

physical force may still be used in certain circumstances, including in detaining an

individual under the ITA. Our legislature has also implemented crisis intervention

training requirements for law enforcement officers. See RCW 43.101.427. There

are crucial policy reasons, including the very nature of mental health crises and

de-escalation, to empower agencies to adapt and respond to each unique situation

as it unfolds. Our legislature has directed that agencies must be able to work

responsively, and be able to prioritize de-escalation. Even in amending RCW

10.120.020, the legislature acknowledged that the statute “represents national

15 We recognize this law, passed in 2022, was inapplicable at the time of the incident.

However, Ghodsee submitted the session law, in its entirety, to this court as an additional authority
under RAP 10.8. While he urged this court to focus on sections 3(1)(d), 3(1)(f) and 3(5)(a)-(b), we
would be remiss if we ignored the other sections which assist in our analysis. We cite to this law
for its persuasive value as it sheds light on how our legislature navigates issues of de-escalation
by law enforcement agencies.

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best practices.” SUBSTITUTE H.B. 1735. Washington statute requires law

enforcement officers to “[w]hen possible, use all de-escalation tactics that are

available and appropriate under the circumstances before using physical force.”

RCW 10.120.020(3)(a).

When KPD made direct contact with Ghodsee on June 28, he responded in

a threatening manner and the officer implemented the de-escalation technique of

shielding by retreating from the home and closing the door between himself and

Ghodsee. Ghodsee’s argument that the officer should have been more aggressive

in that moment so that the detention could have been completed, and thus avoiding

the tragic shooting days later, runs counter to the clear policy considerations of our

legislature. Officers must be empowered to continue utilizing de-escalation

techniques whenever possible, as “best practices.” The court did not err in

granting summary judgment in favor of both the City and County.16

Affirmed.

WE CONCUR:

16 On February 22, Ghodsee filed a Statement of Additional Authorities with this court. The
City objected, arguing this court should decline to consider authorities which were published before
Ghodsee’s reply brief was submitted. The City is correct that the purpose of RAP 10.8 “is to provide
parties with an opportunity to bring to the court’s attention cases decided after the parties submitted
their briefs.” See Gull Indus., Inc. v. Granite State Ins. Co., 18 Wn. App. 2d 842, 857 n.11, 493 P.3d
1183 (2021). However, had the authorities been brought to the attention of this court at oral
argument, we would have properly considered them and we consider the authorities insofar as they
are helpful in reaching our decision.

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