by Marty Hayes, J.D.
One of the most interesting and frustrating aspects of the Network’s fight against the Washington State Office of Insurance Commissioner (OIC) was the issue that arose when the OIC claimed it was against “public policy” to have insurance to provide for the legal defense when accused of a crime. Now, for a moment, let’s discuss the phrase “public policy.” Black’s Law Dictionary defines public policy as: “Broadly, principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society.”
That means that “public policy can be determined by either the legislature declaring that an act is bad, (take, for instance, drunk driving) or by courts deciding that a particular act while not necessarily against the law, is also bad for society as a whole.
Where this public policy argument became part of Network v. OIC was the idea that it is against “public policy” to allow a person to escape punishment for an intentional injury against another, simply because they had purchased an insurance policy. There are many different cases from different jurisdictions which discussed whether insuring against liability for intentionally injuring someone in self defense was against “public policy.”
In the early days of the OIC going after the “Self-Defense Insurance Industry” it was deemed illegal by the OIC, pertaining to programs like the ill-fated NRA-branded Carry Guard program, along with the USCCA’s program. You can read more at https://www.insurance.wa.gov/news/illinois-union-pays-102000-fine-sale-illegal-nra-branded-policies and https://www.insurance.wa.gov/news/kreidler-fines-uscca-100000-illegal-insurance-sales-policies. That took place back in 2019 and 2020. Neither entity chose to actually fight the OIC and its claim that their activities were illegal and against public policy.
Interestingly, early in our discussions with the OIC, we made the case to them that there was nothing wrong about providing a legal defense against charges resulting from an act of self defense. We were ready to take this fight to court, but by the time the actual legal fight began, they had come to the same conclusion and dropped that issue from their legal arguments.
Now, that issue has morphed into the OIC saying it is okay to insure against the defense costs if you are being criminal charged, but also saying that if found guilty, one would need to pay back the defense costs.
This sets up a very dangerous situation, where perhaps one was offered a very favorable plea deal before trial, setting up circumstances where paying back the legal defense funding would be required. Before signing up with any company, you should not just sign up online, but be sure to call them and ask this one vital question: “If I choose to take a plea, am I required to pay back the defense funding?” and, of course, any other questions you might have. You are welcome to call the Network to get that question and any other questions you might have answered.
A final comment on this point, it is our belief and position that there is nothing wrong with having your legal defense costs paid for by another, without any requirement to pay those costs back if a jury found you guilty of a crime or you decided to plead guilty to a lesser crime instead of risking trial.
To this end, we asked our group of Network Affiliated attorneys to discuss why an innocent person might decide to take a guilty plea instead of going to trial. They have provided a rich resource of commentaries that we are publishing in this month’s journal, with more carried over to next month, due to the number of responses. I hope you enjoy their commentaries in the following column.
Check out the Better Business Bureau
Occasionally I do a search of our competitors in the BBB, to see what kind of complaints or issues they have been having. Having said that, I would strongly recommend you check out the company you are planning on relying upon for your legal defense, to see what kind of complaints, if any, the company is receiving and how they resolve it. To help you with that job, I have listed the web links for you here:
United States Concealed Carry Association
Texas Law Shield/U.S. Law Shield
Second Call Defense
Firearms Legal Protection
Armed Citizens’ Legal Defense Network, Inc.
No Visit to the NRA Annual Meeting
Until the last week of this month, the Network was headed to the NRA Annual Meeting. We had looked forward to meeting many members in the convention hall where we had reserved a booth and scheduled a special booth event for our Advisory Board members to be available to meet and chat with our members and others who were attending the meeting. Alas, only days after our booth and supplies were loaded on a semi and hauled off for the trek to Houston, we received word that the NRA had canceled the event.
We are sorry to miss the opportunity to visit with you. Maybe we can get together next year in Louisville. Until then, I will stay in touch with you through this column.
To read more of this month's journal, please click here.