As many of you are aware, we’re making great strides here in Pigtown. No small part of the credit for that is owed to the no-nonsense law and order approach we’re taking here. As a result of that, bad guys don’t like me. Go figure!
As a result, I’m a rare example of a Maryland citizen afforded the right to carry a firearm for personal protection.
As the chairman of the public safety committee for our local village center, I’m more and more a public figure all the time. The village center has been receiving free legal advice from the University of Maryland’s downtown law school; the advice they’ve given us is a fine example of how sometimes nothing is more expensive than free. I won’t go into the details, but the local community has squandered federal grants for police overtime by not giving the money to the Southern District, misappropriated federal funds slated for specific purposes, etc. The fit is really hitting the shan, and the new members of the board, myself included, are only now realizing the depths of the malfeasance.
So what does our pro bono “counsel” do?
They write an entirely unsolicited memo that says the board might experience liablity if a “board member” (I’m not identified by name, but I’m the only board member who’s been on TV talking about his struggle to get permission from the halls of power to defend himself…it was obvious to everyone that they were talking about me) commits a “firearms related misdeed”, whatever the hell that is.
The memo suggests the board consider not letting anyone carry a gun when engaged in board related activity (which isn’t defined, by the way) unless they’re police or military….as though that would somehow obviate any liability that might attach.
Ridiculous nonsense, and an example of the poor counself we’ve been receiving. UMD’s law school openly objects to our law and order approach, and they’ve told us they won’t represent us anymore. Good riddance. My response to their memo is below. I think I did a pretty good job immolating their arguments. See what you think.
To Whom It May Concern:
This letter addresses some concerns raised by Nina Wu and Brenda Bratton Blom in a memorandum dated 4/24/2008, titled Board Liability for Board Members Actions.
Specifically, the memo addresses A) whether WPNPC might experience liability issues if a board member commits a “firearm-related misdeed”, and B) recommendations for actions WPNPC should take.
My initial reaction was (quite reasonably, I think) skepticism regarding the very validity of the question being raised. The initial question posited by Ms. Wu suggests an overly narrow premise, to wit, why would a firearm related misdeed be materially different than a non-firearm related misdeed? Is striking someone with a shovel or baseball bat or stabbing them with a knife or even using a lethal quantity of force from hands and feet substantially or materially different than shooting someone, for the purposes of calculating liability for a misdeed? (It may interest the reader to know that in the most recent year that the FBI’s UCR crime statistics are available, hands and feet killed 15 times as many people in the State of Maryland than rifles of all kinds, assault and otherwise—hands and feet are quite lethal, and are carried everywhere by everyone.) All of those actions listed can just as readily be considered the use of deadly force—force that from a liability standpoint would be no different than force from a firearm; I find it difficult to fathom a scenario in which the Board would face liability for actions by a Board Member because of the improper use of lethal force via firearm wherein that liability would be negated or eliminated because the weapon involved was not a firearm. In other words, if the use of lethal force is not justified and the Board was to face liability, the liability would not be avoided simply because the weapon used by the Board Member was not a projectile firing device. In short, it is difficult to understand why an illicit or improper use of lethal force is somehow less liability-creating if it does not involve a gun. If the board is going to be liable for a member accidentally or criminally shooting someone, it is going to be liable for said member whacking a victim with a shovel or decapitating them with an axe or running them over with a truck.
Board Members routinely handle dangerous devices: chainsaws, power tools, cars, trucks, etc. Why is Counsel not questioning whether Board Members can carry and operate a circular saw or drive a 7600lb Ford F350 4×4 around the neighborhood? The type of dangerous device seems irrelevant upon even a cursory examination. Liability for Board Members’ actions can most likely attach for all sorts of negligence and misdeeds, and thus focusing on “firearms-related” misdeeds seems at best a careless oversight and more likely a rather risible focus on hoplophobic paranoia. Eliminating sources and causes of liability for Board Members is a fruitless pursuit doomed to failure; it cannot be done.
Even if one were to stipulate that considering solely firearm-related actions were a reasonable pursuit, the question of the Board’s liability for the actions of members seems an obvious non-starter for reasons I learned earlier today and explain below.
In the interest of resolving the issue and putting to bed concerns other Board Members might have, I contacted my personal attorney, Mike Wilsman of Severna Park, MD. Mr. Wilsman has 30 years experience practicing law in Maryland and was quite comfortable discussing the subject; while he offered that he could write a 20 page dissertation on the subject, he was able to distill the issue into a few easily understood points.
Firstly, he pointed out to me that Maryland has several statutes that indicate that organizations and corporations are generally protected from liability for simple negligence by volunteer members; as a general rule, for liability to attach, a claimant would have to establish that a volunteer Board Member’s actions were grossly negligent. While the definition of gross negligence is somewhat nebulous, Mr. Wilsman pointed out that gross negligence can be comprised of a nearly limitless number of actions, and that focusing on the use of firearms is an overly narrow, granular approach because of the many ways liability can be created. One questions the political agenda that might motivate such granularity.
Secondly, he remarked that any formal organization could conceivably face liability for board member actions, firearm-related or not, and thus the Board should carry a business officers and directors liability umbrella policy. If WPNPC does not currently carry such a policy, it should acquire one immediately. This type of insurance is relatively cost effective protection from liability of all sorts, and should be carried even if no Board Members own or carry firearms.
In short, WPNPC would be remiss to not have insurance to protect itself from liability that could be incurred for directors’ and officers’ actions; it seems readily apparent that the relevant issue is whether WPNPC has liability insurance, not whether its board members own and carry firearms. For liability to attach to WPNPC, a claimant would have to establish that 1) a Board Member was acting in the employ of the Board when the negligent, improper, or illicit action took place (which would be no easy feat, Board Members like myself collect no salary or remuneration from WPNPC, and WPNPC would be able to claim that I was not acting on behalf of the Board when whatever improper action took place, and claimants would have to make an affirmative case otherwise) and 2) the Member’s actions were grossly negligent, not just negligent. Even if a claimant were able to climb such a steep mountain, it would be irresponsible for WPNPC to not have a liability policy to buttress itself from claims of this nature. Board Members carrying or not carrying firearms is essentially irrelevant to this issue, the real issue at hand. Even if every Board Member stipulated that A) he or she neither owned nor carried firearms and B) would not claim to be acting in the employ of the Board should any misdeed take place, the need for such a liability umbrella remains. The issue is not the gun, it is liability, plain and simple. The myopic concentration on firearms is misplaced and overly narrow. The abolition of carrying firearms would do nothing to prevent WPNPC from facing liability; assuming the liability risk Ms. Wu and Ms. Blom posit is real, it will be there regardless of who owns or carries firearms.
It should be noted that not only am I not the first Board Member to own firearms, but even if a shooting were to take place, I would not even be the first Board Member to be involved in a shooting! One thusly wonders necessarily why this issue is only now being raised; the timing of Ms. Wu’s and Ms. Blom’s Memorandum fails even a perfunctory “sniff test”. It is the position of the Baltimore Police Force that because of the high profile nature of what I do in the community and the threats that I face, I should be afforded the means to protect myself. It should be noted that Major McDonald and Lieutenant Nalewajko of the BPD have both approached me to recommend that I carry a firearm for personal protection. When considering liabilities, it seems readily apparent that the Board should consider the larger picture—whatever liability the Board could possibly face (a liability that we can and should insure ourselves against) against the very real and imminent threat (and yes, liability WPNPC could face for placing me at risk by making it harder for me to defend myself when I face a clear and present danger) to my personal safety posed by the less responsible members of the Pigtown community.
The Memorandum suggests some options. The first is simply to do nothing; very bad idea, in my book—we would be remiss to not confirm that we have an officers and directors liability policy. Option B in the memo is to do just that, a course of action I would certainly support. Option C seems a reasonable pursuit, though most likely an overly myopic approach as I explained above—we’re either covered for liability from misdeeds or we’re not. Option D is nonsense and an example of the more ridiculous hoplophobic claptrap so common in modern-day discourse on the issue. If WPNPC faces liability because of “firearm-related misdeeds”, that liability will not be negated if the evildoing Board Member joins the army or works for the BPD. When am I “on duty”, anyway? What possible protection from liability would we expect if the criminal misdeed were performed by someone in the military? Would a Coast Guardsman’s or Airman’s or Sailor’s or Marine’s criminal misdeeds while “on duty” for WPNPC be materially different than mine? Of course not! If a Board Member is acting on WPNPC’s behalf, what they do for a living the rest of the time is irrelevant—and thus the liability issue should not be couched in terms of what Board Members do for a living. What rubbish.
Option D lays bare the real agenda behind the Memorandum; it seems obvious to me that sometimes there is nothing more expensive than “free”, and this memo underscores why we need REAL legal counsel that is not colored by the biases and agenda of a different organization (one that has openly stated its opposition to the crucial crime-and-grime fighting portion of WPNPC’s mission statement). In short, just because something is provided for free does not mean it is something we should avail ourselves of; we cannot afford legal counsel who offers questionable legal conclusions rooted in a political and social agenda instead of a reasonable appraisal of the situations we face. Come now—is protecting us from liability the issue? Nonsense! It cannot be done. The reality is if we’re liable for Member actions, we’re liable. Disarming me won’t stop that or make a “misdeed” less likely to occur. To that end, I spent my own hard earned time and money researching the issue with competent, independent counsel with no skin-in-the-game here in Pigtown, who confirmed the proper course of action is our Board being responsible and acquiring liability coverage (as well we should), and not making me an easier victim for the felonious animals that plague our neighborhood.
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