IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROSE DAVIS as Personal ) No. 79696-8-I Representative of the Estate of RENEE ) L. DAVIS, deceased, ) ) DIVISION ONE Appellant, ) ) v. ) ) KING COUNTY, a political subdivision ) ORDER GRANTING MOTION of the State of Washington, TIMOTHY ) FOR RECONSIDERATION AND LEWIS, Deputy, King County Sheriff’s ) PUBLICATION AND ORDER Office, individually and in his official ) WITHDRAWING AND SUBSTITUTING capacity acting under the color of state ) OPINION law; NICHOLAS PRITCHETT, Deputy, ) King County Sheriff’s Office, individually ) and in his official capacity acting under ) the color of state law; JOHN ) URQUHART, in his individual capacity; ) MITZI JOHANKNECHT, Sheriff, King ) County Sheriff’s Office, in her official ) capacity; JOHN DOES 1-10, individually ) and in their official capacities acting ) under the color of state law, ) ) Respondents. ) )
Appellant Rose Davis filed a motion to reconsider and publish the court’s opinion
filed on August 31, 2020. Respondent King County has filed a response. The panel
has determined that the appellant’s motion for reconsideration and publication should be granted and that the opinion filed on August 31, 2020 shall be withdrawn and
substituted with a new published opinion.
Now, therefore, it is hereby
ORDERED that appellant’s motion for reconsideration and publication is granted
and that the opinion filed on August 31, 2020 shall be withdrawn and substituted with a
new published opinion.
FOR THE COURT:
2 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROSE DAVIS as Personal ) No. 79696-8-I Representative of the Estate of RENEE ) L. DAVIS, deceased, ) ) DIVISION ONE Appellant, ) ) v. ) ) KING COUNTY, a political subdivision ) of the State of Washington, TIMOTHY ) PUBLISHED OPINION LEWIS, Deputy, King County Sheriff’s ) Office, individually and in his official ) capacity acting under the color of state ) law; NICHOLAS PRITCHETT, Deputy, ) King County Sheriff’s Office, individually ) and in his official capacity acting under ) the color of state law; JOHN ) URQUHART, in his individual capacity; ) MITZI JOHANKNECHT, Sheriff, King ) County Sheriff’s Office, in her official ) capacity; JOHN DOES 1-10, individually ) and in their official capacities acting ) under the color of state law, ) ) Respondents. ) )
MANN, C.J. — Washington’s felony bar statute, RCW 4.24.420, creates a
complete defense to any action for damages for personal injury or wrongful death if the
person injured or killed was engaged in the commission of a felony at the time of the No. 79696-8-I/2
injury or death and the felony was a proximate cause of the injury or death. On its face,
the statute applies even if the defendant was negligent or unreasonable.
The estate of Renee Davis appeals the trial court’s summary judgment order
dismissing its wrongful death action. Davis was fatally shot by law enforcement during
a mental health crisis where she was suicidal. On appeal, the estate contends that the
trial court erred in granting the defendants’ summary judgment motions because the
court improperly inferred Davis’s specific intent to assault the deputies, made credibility
determinations about the deputies’ version of events, and because issues of material
fact exist as to whether the defendants’ negligence was the proximate cause of Davis’s
death. The estate also contends that the trial court erred because the felony bar statute
requires a criminal conviction or admission to felonious conduct before it can bar a
wrongful death action. We reverse.
I. FACTS
On October 21, 2016, T.J. Molina approached King County Sheriff’s Office
Deputy Nicholas Pritchett on the powwow grounds at the Muckleshoot Indian
Reservation during his patrol shift. 1 Molina was worried about his girlfriend, Davis, who
had been sending him concerning text messages. Davis had a history of psychiatric
treatment for mental illness and history of attempted suicide.
At 6:21 p.m., Davis sent Molina a text message saying “[w]ell come and get the
girls or call 911 I’m going to shoot myself.” Another text message followed at 6:28 p.m.
1 Davis was a member of the Muckleshoot Indian Tribe. It is common for residents of the Reservation to seek out law enforcement officers for help rather than call 911.
-2- No. 79696-8-I/3
that said “[t]his is to show you I’m not lying,” with a blurry photo that appeared to be an
injury. It was unclear from the photo the severity and location of the potential injury.
Molina sought out Pritchett’s help because Davis had two of her three children
with her and was also pregnant with a fourth child. Pritchett was familiar with both
Davis and Molina because he had responded to domestic violence incidents at Davis’s
home concerning Davis’s ex-boyfriend. Molina showed Pritchett the text messages
from Davis. Pritchett thought the picture could have been an injury or a “photo off the
internet,” but because the image was blurry, he could not be sure. Molina told Pritchett
that Davis had access to a rifle and a handgun.
Pritchett advised dispatch of a “suicidal female, possibly armed with a rifle and
who has her two children with her,” texting “pictures of fresh injuries, unsure who is
injured,” and “female is Davis, Renee possibly born in 1993” at 6:37 p.m. Pritchett
indicated that he would conduct a welfare check. Dispatch advised Pritchett that
backup was approximately 26 minutes away. Pritchett asked dispatch to check if any
units from the Auburn Police Department were available to respond. At the same time,
Deputy Lewis was commuting home when he overheard Pritchett’s radio transmissions
and responded. Lewis had been attending a firearms training at the King County
Sheriff’s Office range.
Pritchett parked a few blocks away from Davis’s home at 6:44 p.m. Pritchett
approached the home on foot to survey the area and look for signs of distress. Pritchett
returned to his vehicle to wait for backup. Lewis arrived at approximately 6:45 p.m.
Pritchett quickly told Lewis about a tree he observed outside Davis’s residence where
-3- No. 79696-8-I/4
they could shelter if there was gunfire. Lewis knew only what he heard over the radio
and did not know that Davis was pregnant or that Pritchett had prior contacts with Davis.
Together, the deputies approached Davis’s house on foot at approximately 6:52
p.m. Neither heard any noise from the house or indication that the occupants were in
distress. Both deputies loudly knocked on the front door, siding, and windows of the
house. They repeatedly yelled “Sheriff’s Office!” “It’s the police!” and “Come to the
door!” to get Davis’s attention. Lewis tried to remove the screen from the window when
he saw Davis’s two children in the living room and asked them to open the front door;
Davis’s three-year-old child complied. Both children appeared to be under the age of
five.
The deputies entered the home, Lewis had his weapon drawn. After quickly
assessing the children’s well-being, Lewis moved the children to the front door foyer
while Pritchett checked the living room and kitchen area. Lewis asked the children
“Where’s mommy’s room?” and one of the children pointed to a door down the hallway.
Lewis covered the hallway and the two bedrooms at the back of the hallway while
Pritchett approached the first bedroom. The doorknob had a child safety device on it,
and Pritchett was unable to maneuver the device because he had on gloves. Pritchett
kicked the child safety device off the doorknob.
The deputies entered Davis’s bedroom and observed her lying in her bed,
covered in a blanket up to her neck, staring blankly at the door. The deputies instructed
Davis to show her hands; Lewis recalled that Davis did not respond, while Pritchett
recalled that Davis said “no.” Lewis pointed his weapon at Davis while Pritchett pulled
the blanket off Davis. Both deputies testified that they saw a gun. Lewis recalled that
-4- No. 79696-8-I/5
Davis’s right hand was over the top of or below the gun, with the muzzle facing the foot
of the bed, while Pritchett recalled that the gun was in Davis’s right hand resting on her
legs. Both deputies observed a magazine in Davis’s left hand, but could not tell whether
the gun was loaded or unloaded.
Lewis ordered Davis to “drop the gun,” while Pritchett yelled “gun.” Pritchett
attempted to move back toward the door. Both officers testified that she raised the gun
and pointed it directly at them—apparently at the same time. Both Lewis and Pritchett
fired their weapons. Three bullets hit Davis. Pritchett announced “shots fired” over the
air. Davis slumped over, fell off the bed, and stated “Its not even loaded.”
Lewis heard the children screaming and left Pritchett alone in the bedroom with
Davis. Lewis encountered Auburn Police Officer, Derek Pederson, as he took the
children outside. After removing the children from the home, Pederson and Lewis went
back to Davis’s bedroom. According to Pederson he saw the gun in Davis’s hand while
she was lying on the floor and one of the deputies took it out of her hand. Pritchett
testified that he told Lewis that they needed to make the scene safe and asked Lewis to
cover him while he got the gun. Pritchett claimed he recovered the gun from the bed,
checked it, and confirmed that it did not have a magazine nor round in the chamber. He
then put the gun in his belt. Lewis testified that he was watching Davis and did not see
Pritchett remove the gun from the bed.
Pederson moved the bed away from Davis so that medical personnel could
provide treatment. Pritchett called for aid and moved Davis to a location where aid
could be provided. Fire department medics, who had been waiting outside entered and
performed lifesaving measures. Medics were unable to revive Davis.
-5- No. 79696-8-I/6
On January 3, 2018, the estate filed a wrongful death action against King County,
Pritchett, Lewis, former King County Sheriff Urquhart and Sheriff Johanknecht 2
(collectively King County) for negligence, battery, negligent use of excessive force, and
outrage. King County moved for summary judgment to dismiss all of the estate’s claims
based on the felony bar statute, that the deputies had no legal duty to Davis, that
Washington does not permit a negligent investigation against police, the deputies’
actions were intentional, justified, and reasonable, the facts do not support a claim for
battery because the deputies were justified in using deadly force when confronted with a
deadly threat, and the elements of outrage could not be met. The estate responded that
RCW 4.24.40 required a felony conviction or admission by the plaintiff and that Davis
was accused of committing assault in the first degree, which requires specific intent to
cause bodily harm or an apprehension of bodily harm. At oral argument, the estate
argued that the jury could infer that Davis didn’t have the necessary specific intent.
The trial court granted summary judgment in favor of the defendants, concluding
that, while there may be disputes of material fact related to the reasonableness of the
deputies’ conduct, RCW 4.24.420 barred Davis’s action. The estate appeals.
II. ANALYSIS
A. Intent to Commit Assault
The estate first contends that the trial court erred in granting summary judgment
based on the felony bar statute, RCW 4.24.420. It avers that there are questions of
material fact over whether Davis had the necessary specific intent to commit a felony
assault. We agree.
2 Davis’s estate voluntarily dismissed Johanknecht as a defendant.
-6- No. 79696-8-I/7
“We review summary judgment motions de novo, engaging in the same inquiry
as the trial court.” Vargas v. Inland Washington, LLC, 194 Wn.2d 720, 728, 452 P.3d
1205 (2019). “When reviewing summary judgment motions, we consider all disputed
facts in the light most favorable to the nonmoving party.” Vargas, 194 Wn.2d at 728
(internal quotes omitted). “Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”
CR 56. Estate of Lee v. City of Spokane, 101 Wn. App. 158, 166, 2 P.3d 979 (2000).
The trial court based its order granting summary judgment on the affirmative
defense provided by the felony bar statute. RCW 4.24.420 provides that
[i]t is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death and the felony was a proximate cause of the injury or death. However, nothing in this section shall affect a right of action under 42 U.S.C. Sec. 1983.
In order to prevail on the defense provided by RCW 4.24.420, King County bears the
burden of demonstrating: (1) that Davis was engaged in the commission of a felony at
the time of her death and (2) that the felony was the proximate cause of her death.
Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014)
(the party raising affirmative defense bears the burden of proof).
King County asserts that Davis was engaged in either second or third degree
assault at the time she was killed. RCW 9A.36.021(1) defines second degree assault,
in pertinent part: “[a] person is guilty of assault in the second degree if he or she, under
circumstances not amounting to assault in the first degree . . . (c) [a]ssaults another with
a deadly weapon.” RCW 9A.36.031(1)(g) defines third degree assault, in pertinent part:
-7- No. 79696-8-I/8
“[a] person is guilty of assault in the third degree if he or she, under circumstances not
amounting to assault in the first or second degree: . . . (g) Assaults a law enforcement
officer or other employee of a law enforcement agency who was performing his or her
official duties at the time of the assault.”
Because “assault” is not defined in the criminal code, we resort to common law
definitions. State v. Abuan, 161 Wn. App. 135, 154, 257 P.3d 1 (2011). Washington
recognizes three common law definitions of ‘assault’: (1) an intentional touching (actual
battery); (2) an act done with intent to inflict bodily injury upon another, tending but
failing to accomplish it; and (3) an act done with intent to create in another
apprehension and fear of bodily injury, and which in fact creates in another a
reasonable apprehension and imminent fear of bodily injury. 11 W ASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS; CRIMINAL 35.01 (4th ed. 2016) (WPIC);
Abuan, 161 Wn. App. at 154 (citing State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439
(2009)). Importantly here, specific intent to cause bodily harm or to create
apprehension bodily harm is a necessary element of assault. State v. Byrd, 125 Wn.2d
707, 713, 887 P.2d 396 (1995).
“‘Intent’ to commit a criminal act means more than merely ‘knowledge’ that a
consequence will result.” State v. Bea, 162 Wn. App. 570, 579, 254 P.3d 948 (2011).
The known or expected result must also be the person’s objective or purpose. Bea, 162
Wn. App. at 579. Where there is no direct evidence, intent can be inferred from
circumstantial evidence. “A jury may infer criminal intent from a defendant’s conduct
where it is plainly indicated as a matter of logical probability.” Bea, 162 Wn. App. at 579
(citing State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997)).
-8- No. 79696-8-I/9
While the trier of fact is permitted to draw an inference or presumption that a defendant intends the natural and probable consequences of [their] acts, however, the defendant is entitled to have the jury give equal consideration to the possibility that [they] did not act intentionally, including any theory of nonintentional conduct that [they] might offer.
Bea, 162 Wn. App. at 579-80.
Intent is a question of fact, normally reserved for the jury. “Where intent of the
accused is an ingredient of the crime charged, its existence is a question of fact which
must be submitted to the jury.” Morissette v. U.S., 342 U.S. 246, 274, 72 S. Ct. 240, 96
L. Ed. 288 (1952) (it is error for the trial court to instruct jury to presume intent). See
also Bea, 162 Wn. App. at 579; Wingert v. Yellow Freight Systems, Inc., 146 Wn.2d
841, 849, 50 P.3d 256 (2002) (“the statute’s requirement that the [person] act willfully
and with intent presents a question of fact.”). 3
In granting summary judgment, the trial court relied on the testimony of Deputies
Pritchett and Lewis, that Davis pointed a weapon at them, to infer her intent to commit
felony assault. This was error. As the estate argues, the evidence in the record before
us raises numerous questions of fact over whether Davis intended to commit an assault.
This evidence includes Davis’s history of mental illness and attempted suicide, 4 the
deputies’ conflicting testimony about where the gun and clip were located, their
3 King County cites Lee for the proposition that “a judge on summary judgment is fully authorized
to infer said intent.” Lee involved an appeal of a trial court decision dismissing a survivorship action brought under 42 U.S.C. § 1983 against the City of Spokane after a police involved shooting. After concluding dismissal was appropriate, the court went on to address several additional immunity defenses raised by the City. In a short, two sentence discussion at the end of the opinion, the court concluded that RCW 4.24.420 provided the City a defense because “[b]y the plaintiff’s own account, Mr. Lee pointed a gun at Officer Langford and Ms. Lee after threatening to shoot them. This is first degree assault, a felony.” The court did not discuss intent, much less, conclude that intent could be inferred by the trial court on summary judgment. 4 Evidence of diminished capacity is admissible to prove or disprove that a defendant was
capable of forming the requisite specific intent to commit a crime. State v. Poulsen, 45 Wn. App. 706, 708, 726 P.2d 1036 (1986).
-9- No. 79696-8-I/10
testimony that she pointed the gun at each of them—apparently at the same time,
Davis’s dying statement that “Its not even loaded,” and the conflicting testimony whether
the gun was found in Davis’s hand on the floor, or still on the bed. While a jury might
find the officers’ testimony credible and Davis’s act of pointing the gun demonstrates her
intent to commit an assault, it might also conclude to the contrary. The trial court erred
in concluding Davis had the requisite specific intent to commit assault. 5
B. Conviction or Admission
While we reverse and remand for trial, we also address the estate’s alternative
argument that the trial court erred in granting summary judgment under RCW 4.24.420
because there must be a felony conviction or admission to felonious conduct before the
court can bar a wrongful death action under RCW 4.24.420. We disagree.
We review statutory interpretation de novo. Tesoro Ref. & Mktg. Co. v. State,
Dep’t of Revenue, 173 Wn.2d 551, 556, 269 P.3d 1013 (2012). “The primary objective
of any statutory construction inquiry is to ascertain and carry out the intent of the
Legislature.” Tesoro, 173 Wn.2d at 556. First, we look to the statute’s plain language
and if the language is unambiguous, our inquiry ends. State v. Armendariz, 160 Wn.2d
106, 110, 156 P.3d 201 (2007). “The statute is to be enforced in accordance with its
plain meaning.” Armendariz, 160 Wn.2d at 110. “Where the plain language of the
statute is subject to more than one reasonable interpretation, it is ambiguous.” When a
statute’s language is ambiguous, we may resort to legislative history to discern
legislative intent. Armendariz, 160 Wn.2d at 110-11.
5Because we reverse and remand for trial, we do not address the estate’s argument that there was a question of fact over whether Davis’s actions were the proximate cause of her death.
-10- No. 79696-8-I/11
Here, the statute’s language is unambiguous. The plain language of the statute
does not require that a person be convicted of a felony or admit to felonious conduct
before RCW 4.24.420 is a complete defense to a civil action. Instead, the language
states “[i]t is a complete defense to any action for damages for personal injury or
wrongful death that the person injured or killed was engaged in the commission of a
felony.” RCW 4.24.420 (emphasis added). A wrongful death action will likely never
involve a conviction or admission to felonious conduct because the death would
proceed any possible trial or admission. When possible, we “give effect to every word,
clause and sentence of a statute.” Cox v. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683
(1985). The argument advanced by the estate reads the language “wrongful death” out
of the statute by making the defense unavailable in almost all wrongful death actions.
We read the statute to specifically contemplate its applicability in wrongful death
actions.
We reverse the trial court’s order granting summary judgment based on RCW
4.24.420.
WE CONCUR:
-11-