by Marty Hayes, J.D.
Happy New Year! Last month I posed a question to our members in which I asked, “What member benefits should the Network add to the benefits we extend to our members?” I really appreciate the numerous answers you sent me to the question, and since the answers are still trickling in, I will give it another month before I compile the answers and report back.
In the meantime, I want to clarify something. At least one member expressed confusion about why, on one hand, we would be advising of a likely dues increase to help us meet our obligations due to rising inflation, when, on the other hand, my question implied that we had plenty of money in the Legal Defense Fund and would consider adding benefits.
I can understand the confusion and would like to explain. So, here is how the Network finances work. When we receive member dues, we separate the amount into a 25-75 percent ratio. We then deposit the 25% into our Legal Defense Fund (a separate bank account) and the other 75% goes into our general operating bank account.
We administer the business of the Network from the operating account – salaries, rent and other operating expenses come out of this account. We also maintain a fairly large savings account so we can address any emergencies that come up.
Because of the way we do business, we have been able to fund the legal fight against the Washington State Insurance Commissioner (OIC) out of our operating budget, aided by the generous contributions from members who want to fight this anti-gun politician. We have never tapped into the Legal Defense Fund for the fight against the Washington State Insurance Commissioner or for any operating expenses.
We have completed our briefing (we had two briefs, the appellant’s brief and our reply to the OIC brief). I read through our legal arguments, and believe they are very solid, much more convincing than those of the OIC. Of course, maybe I just jinxed us, but I have never been all that superstitious.
One thing I have done with this 3-year fight is take a really deep dive into the legal issue of what we ideated and set up 15 years ago. The OIC is making the argument that one can ensure acts of self defense, but the caselaw and legal authority says that insurance ONLY applies to a fortuitous act, not an intentional act. Fortuitous means by chance.
In May of 2022, the OIC made the argument to the trial court that an act of self defense can be both contingent and also intentional, and the trial judge bought the argument. If this rationale was to stand, it would suggest that when a person uses force in self defense, they are not deciding for themselves the nature of the threat and the degree of force they must use to thwart that force used against them, but are simply responding to a physical attack. But caselaw in WA state, along with the statutory law and court rulings, all indicate that the defender must make an “individualized determination of necessity” regarding the response to the threat and the degree of force. One of the reasons we have decided to appeal this decision (and likely would continue to appeal if necessary) is to establish caselaw about what constitutes insurance. There is no caselaw in the country establishing exactly what is or is not insurance, but after this case, there should be!
What we do not know is how our ruling will affect the other companies which do sell actual self-defense insurance. If this appellate court rules that because self defense is an intentional act, and because one cannot insure an intentional act, would that negate the policies of one company which currently does sell self-defense insurance in WA state? It will be interesting to watch and see what happens.
What now? Well, we are now just in a waiting game, and months will likely pass before we get a final ruling. The appellate court will respond at some time with a date for oral arguments, and then after those take place, we will get a ruling. “The wheels of justice grind slowly,” I have heard more than once.