Metropolitan News-Enterprise

 

Monday, September 12, 2022

 

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Court of Appeal:

County Not Liable for Failed Effort in Hostage Episode

Tucher Declares That Deputy Sheriff Who Fired Shots at Door to Room Where Gunman Held Employees of Facility

Captive Did Not Increase Risk of Harm to Them From Culprit, Who Proceeded to Fatally Shoot Them

 

By a MetNews Staff Writer

 

A county cannot be held liable for the actions of an armed intruder who took hostages at a facility and, after a sheriff’s deputy fired several shots through the door of the room in which they were holed up, fatally shot the victims, a response allegedly sparked by the deputy initiating gunplay, Div. Three of the First District Court of Appeal has held.

Presiding Justice Alison M. Tucher authored the opinion, filed Thursday, affirming two Jan. 12, 2021 judgments of dismissal in wrongful death actions against Napa County, its sheriff’s department, and retired Sheriff’s Deputy Steve Lombardi. The judgments in the twin cases followed Napa Superior Court Judge Monique Langhorne’s sustaining of demurrers, without leave to amend, to the third amended complaints brought by the families of Christine Loeber and Jennifer Golick, who were slain on March 9, 2018.

Loeber was executive director and Golick was clinical director of a private corporation that provided mental health services at a now-shuttered facility known as “The Pathway Home” for veterans of the Iraq and Afghanistan wars who suffered from post-traumatic stress disorder. They were among three women who were taken as hostages there by Albert Wong, a former resident of the home who had been compelled to leave it based on his persistent violation of rules, and harbored hostility toward the facility’s personnel.

He showed up at the home in battle gear, toting a semi-automatic rifle, entering a “group room” where about 10 to 15 persons were assembled for a going-away party for a staff member, and ordered all to leave except Loeber, Golick, and clinical psychologist Jennifer Gonzales Shushereba.

Lombardi, then a deputy sheriff (since retired), arrived on the scene. He pushed open a closed door to the room, saw Wong, did not fire, and let the door close.

Deputy Opens Fire

The deputy then shot at the door 13 times; Wong fired 22 rounds. A California Highway Patrol investigation showed that it was just after the exchange of fire that Wong fatally shot the three women and himself.

(The opinion notes that the door was a metal one, but does not indicate whether any of the bullets penetrated it, though the implication is that they did. It does not mention whether Lombardi, in looking into the room, determined that Wong was so positioned that shots fired at the door would be apt to hit him, and does not make reference to a report by the Napa County District Attorney’s Office setting forth that Lombardi acted after hearing Wong “rack” his rifle and one of the hostages screamed.)

The families of Loeber and Golick set forth in their respective pleadings that Lombardi “agitated and provoked” Wong and “exacerbated the problem” by firing bullets through the closed door, thereby increasing the risk of harm to the hostages, and thus creating a duty to them of reasonable care. Tucher’s opinion rejects that contention.

Tucher’s Opinion

The presiding justice wrote:

 “[T]he fact that Lombardi’s attempt to subdue Wong was unsuccessful is not proof that Lombardi increased or materially altered the risk that Wong would shoot the hostages and himself, as he had threatened to do. Failing to eliminate a pre-existing risk of harm does not satisfy the element of increased risk required to establish a negligent undertaking.”

She continued:

“Nor should we be distracted by the question of whether Lombardi placed the hostages at risk of becoming accidental victims of the shots he fired from behind the closed door—or of being caught in crossfire as Wong shot back at Lombardi—as neither of these risks materialized.”

Other Contentions

The plaintiffs also contended that Lombardi’s action in opening the door to make his presence known agitated Wong, thereby increasing the risk of harm, and that the deputy should either have burst in the room and killed Wong or not opened the door. They also alleged that by virtue of Lombardi’s actions, the prospect was eliminated of the hostages successfully negotiating with Wong.

Tucher said the facts that are alleged “do not support a reasonable inference that Lombardi appreciably increased the risk that Wong would harm his hostages,” commenting:

“Everyone regrets that Lombardi was unable to prevent the senseless loss of life here, but we cannot reason backwards from the disastrous outcome to attribute Wong’s intentional killing of his hostages to Lombardi’s conduct, based on mere conjecture that if Lombardi had not inserted himself, a better outcome could have been achieved.”

‘Special Relationship’

 Aside from alleging that the general “no-duty-to-protect” rule was overcome by Lombardi boosting the risk of harm, the plaintiffs pled that Lombardi, the county, and the Sheriff’s Department had a “special relationship” with the victims. Tucher responded:

“Cases finding a special relationship based on the performance of police duties are rare and involve situations in which the victim detrimentally relied on some conduct or representation by the officer.…In this case, plaintiffs do not allege that the hostages detrimentally relied on anything that Deputy Lombardi said or did.”

The case is Golick v. State of California, 2022 S.O.S. 4307.

Families of all three victims brought actions, and the defendants included the State of California, the California Highway Patrol, and the California Department of Veterans Affairs (“CALVET”). Not reflected in the opinion is that the state agreed in June to pay $51 million to settle the litigation—hence no discussion appears as to whether that settlement rendered the matter of the county defendants’ liability moot.

Under an agreement between CALVET and Pathway, the state provided security at the home. Tucher made note in her opinion that “lax security by the State defendants enabled” Wong “to execute” his “murderous plan.”

The Napa Superior Court on Aug. 19 approved the compromise of a minor plaintiff’s claim and a hearing is set for Friday to confirm that proceeds have been placed in her trust.

 

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