by Marty Hayes, J.D.
The next phase of the Armed Citizen’s Legal Defense Network, Inc. v. Washington State Office of Insurance Commissioner is now fully underway. Our appeal of Lewis County Superior Court Judge James Lawler’s May 2022 ruling will be heard in the Washington State Court of Appeals, Division Two sometime later this year or early next year. Until then, initial briefing, response briefing, response briefing to the response briefing and one last round of response briefing will be taking place. At issue will be the trial court judge’s ruling that what the Network was doing was selling insurance without a certificate of authority. Our defense is that enrolling people in the Network was only allowing them to join an organization that supplies educational benefits for the armed citizen to best be prepared to make decisions regarding armed self defense, and in the event that the member chooses to use force in self defense, the Network would, upon request, likely fund the legal defense of the member. Funding this defense was never guaranteed, but instead rests solely in the hands of Network leadership, after a review of the particulars by at least one, if not all of the Advisory Board (https://armedcitizensnetwork.org/defensefund/advisory-board).
The legal issue is the definition of insurance. The Office of Insurance Commissioner (OIC) made the argument, and the trial judge agreed, that a use of force act is a contingent act, responding to the acts of the aggressor. The Network argues that because the use of force is an intentional act, it cannot be contingent upon the aggressor, because what is missing from the OIC argument is the subjective belief of the defender. That cannot be a “determinable contingency” as what the defender believed at the time is not determinable from one instance to the next. There are other issues, too, and if you want to explore these, go back and log in to the members-only section and read the briefing (https://armedcitizensnetwork.org/members/resources) and previous president’s messages.
Up to this point, we have been ably represented by attorney Spencer Freeman, a solo practitioner with offices located in Tacoma, WA. Through a fortuitous set of circumstances, I recently had occasion to meet Edward Wenger, an appellate attorney who is a partner in a Washington D.C. firm, who, along with several others in the firm, specialize in appellate law. After I discussed our case with him, he agreed to take a look at the issues, saying that if he felt we had a viable appeal, he would assist us with that appeal. That process commenced a couple of weeks ago. We are pleased to announce that our legal team just grew by two additional attorneys, both with a great deal of appellate experience. If you want to know more about this firm https://holtzmanvogel.com/about/ and the two attorneys, Edward M. Wenger https://holtzmanvogel.com/people/ed-wenger/ and Dennis W. Polio https://holtzmanvogel.com/people/dennis-w-polio/ browse to the links provided.
Even with the addition of the new firm and attorneys, Spencer Freeman https://callkimandspencer.com/about-us/spencer-d-freeman/ will continue to be lead counsel for our fight. We will be moving forward with a team we are convinced will give us the best shot (pun intended) to prevail in our fight.
Why Are We Fighting this Hard?
There are many reasons for continuing this fight, and I will attempt to explain. First off, we believe we are right, and we are willing to spend the resources to prove it. I have spent my entire life living with a firmly entrenched principle that if a person is right, they should not give in just because it might be easier to fold. One such example was my work on the Ronda Reynolds murder case, in which both my county coroner and county sheriff concluded that a young local woman had committed suicide. After taking a look at the evidence in the case, I said, “There is NO WAY she committed suicide!” That case is detailed in the late Ann Rule’s true crime book, In the Still of the Night, available on Amazon, or for synopsis of the case, you can read https://www.chronline.com/stories/ronda-reynolds-death-a-homicide,155585 .
My involvement in the Reynolds case resulted in leaving my chosen profession of law enforcement, because there was no way I could continue to work in my local community after taking this public stand against the Lewis County Coroner and Sheriff. Leaving law enforcement led directly to the creation of the Network, so it was not all bad. Since I had some free time on my hands, I decided to pursue law school, and within three years I had formed the basic framework of the Network. When I graduated, I could have become an attorney, but I was convinced to give the idea of the Network an honest try. That was in 2007, and a year later, we had formed the Network and we were off and running.
Aside from my personal convictions, though, there is a pragmatic side to staying in this fight. If we were to give in and agree we were selling insurance, what would the other states in which we serve members have to say? We were not first nor were we the only entities the WA OIC went after. They also set their sights on the NRA, USCCA, US Law Shield, CCW Safe, and Firearms Legal Protection and each of these companies was fined. While each had the right to appeal, none did. Some others stopped selling in Washington state when they saw what happened to the NRA and thus avoided further litigation.
I have stated all along that what I wanted out of this litigation was to make case law stating that what we do at the Network is not an insurance product. It is taking longer and is more costly than expected, but we are in it for the long haul. One thing the whole team here at the Network and I really appreciate is the financial support in contributions to the legal fight. Members and non-members have been very generous, giving us over $20,000 for the fight. I wonder if we could use that fact in court? After all, who donates money to their insurance company?
Okay, you are now up to date on the fight. I will report back when we have a court date, which will be sometime down the line.
All is Quiet!
It has been over a year since we had a member involved in a self-defense situation which resulted in a request for assistance. Of course, this is great as it helps build the Legal Defense Fund to higher and higher levels. The Fund’s balance is currently over $3.5 million, and at this rate, we should hit $4 million within a year. I get questioned all the time from people who worry whether that money is enough. After all, both the Rittenhouse and Zimmerman legal defenses ran into the millions of dollars. What is not spoken of is the fact that both cases were high profile, heavily publicized in news media like FOX News and CNN, where the defense teams raised a considerable amount of the defense costs through pleas for support. I personally donated to Zimmerman, and by the time I had enough details to be comfortable donating to Rittenhouse, it looked like he had sufficient cash to handle the defense. If one of our members became the next cause celeb for the anti-gunners, I can envision doing a public awareness campaign to help raise money, too. I do not fear the high-profile cases.
Take Note, Instructors
Are you an instructor and have you been wanting to get certified to teach the principles of use of deadly force in self defense, or as an individual, do you simply want the best education you can receive in deadly force training? If so, you will be interested to know that Network Advisory Board Member Massad Ayoob is holding a rare Deadly Force Instructor Course in Pennsylvania in November. This course is only open to people who are currently firearms instructors or who are members of the Network. Please see the following link for more information https://massadayoobgroup.com/event/deadly-force-instructor-class/ .
Do You Really Need Liability Insurance?
One of the things some of the other companies do is scare people into signing up for their insurance plans, convincing them that they need liability protection against lawsuits. I have never believed that lawsuit protection was worth the money paid out for the premiums. Some of the other companies’ fee structures start at several hundred dollars for a year’s coverage. None of our members have been sued after using force, although we stand ready to assist with the legal defense of a civil suit just as we do for a criminal defense. Although I’m frequently asked, I do not have a recommendation of any of the companies which offer this coverage, as I frankly do not trust any of them to be around years down the line or to follow through on their promises.
Carrying in Houses of Worship
I received an e-mail today from a New York member, who asked if the newly enacted New York laws making many common areas, including houses of worship, off limits to concealed carry would prevent the Network from assisting a member who carried in violation of this new law, and was involved in an incident. I don’t have an across-the-board answer to answer his question yet. It is our policy to not promote carrying concealed weapons in places were doing so is illegal, and in order to not promote that crime, as a default position, we will not draw on the Legal Defense Fund to pay for the defense of a member who is also arrested for that statutory violation. Understand, however, that this does not prevent us from raising funds directly from our members to help defray a member’s legal defense costs. We certainly can do that without tapping the Legal Defense Fund and outside of restraints on its use.
One additional piece of advice, specifically about houses of worship: Perhaps it is time to have a heart-to-heart talk with your pastor, priest or rabbi, to see how you will be treated if you take action to defend them and the congregation. Support for your actions from the house of worship would go far towards gaining approval from the law enforcement agency and prosecutor’s office. In all the recent instances in which parishioners stopped active shooters, the armed citizens have been treated extremely well, and were, in fact, treated as heroes should be treated. I wish we could say, “Sure, we would be there for you,” but if you are breaking the law, we can’t. I will say you are not alone. This is the best we can do.
To read more of this month's journal, please click here.