Texas Supreme Court holds Plaintiff’s employer properly filed notice of claim under city charter on behalf of employee

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Leonarda Leach v City of Tyler, 21-0606 (Tex. September 16, 2022), per curiam.  

This is a Texas Tort Claims Act (“TTCA”) case where the Texas Supreme Court held the Plaintiff provided proper notice of claim to the City in order to waive immunity.  

 Leondra Leach, while working for his employer Ameri-Tex, alleged that an improperly secured piece of lumber flew off a truck owned by the City of Tyler and struck him in the head. The City asserted in a summary judgment that Leach had failed to provide the City with timely notice of his claim. The TTCA requires notice of claim within one hundred eighty days of the injury. The City of Tyler’s charter requires notice of tort claims within thirty days. The City has promulgated a “Claims Notice” form that a claimant may submit to comply with the city charter’s requirement. Ameri-Tex completed and filed that form seven days after the incident. Ameri-Tex told Leach that it would file a single notice both for itself and for Leach, so Leach himself filed nothing. The issue became whether the notice received from Ameri-Tex provided notice of claim as to Leach.   The trial court agreed and granted summary judgment in favor of the City; the court of appeals affirmed (summary found here). Leach appealed.  

While the Ameri-Tex notice of claim listed only itself as the claimant, the form clearly mentioned Leach, by name, and his purported injuries. It also summarized how the incident occurred. Notice of this sort satisfies the TTCA’s demand for basic information. Next, the City charter has its own notice requirements which the TTCA has “ratified and approved” through Section 101.101(a). Therefore, Leach must have also satisfied the 30-day requirement. Ameri-Tex’s notice identifies him in the description of the incident (not the claimant section) but provides the basic information needed for such notice of claim. The City’s point is that, even if Leach’s name appears in the “injuries sustained” section of the form, his name does not appear on the line denominated “Claimant.” The Court held “[t]he City could not reasonably conclude, however, that Ameri-Tex named Leach, provided Leach’s contact information, and detailed Leach’s injury for any reason other than to notify the City of that injury.” Further, while Ameri-Tex did not fill out the “form” provision which requires the anticipated value of the injuries, the charter is the law, not the form. The charter only requires the anticipated value of property damage, not personal injury. While the City points to the public policies behind requiring such information in the form, injured citizens are bound by enacted text, not underlying legislative motivations. The notice on behalf of Leach more than complies with the plain language of the statute and the city charter. As a result, the City’s motion should have been denied.  

If you would like to read this opinion, click here. Per curiam opinion. Docket page found here.  

Fourth Court of Appeals holds civil service employee established jurisdiction for denial of due process claim

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City of Laredo  and City of Laredo Municipal Civil Service Commission v. Tony H. Moreno, 04-21-00413-CV, (Tex. App – San Antonio, Aug. 24, 2022) 

This is a civil service appeal where the Fourth Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.  

Moreno was the City of Laredo’s Water Treatment Superintendent. He was terminated after the City had to issue boiled water notices due to low chlorine levels being detected. The City charter provides such employees with certain civil service protections. Moreno was terminated and appealed to the civil service commission, which affirmed the termination. Moreno filed suit. The City filed a plea to the jurisdiction, which was denied. The City appealed.  

When an administrative body’s decision adversely affects a vested property right or a constitutional right, an inherent right of appeal exists. Civil service employees have a vested property interest in their continued employment. Civil service protection provided in a charter provision does not fall under the same civil service process used for police and fire employees. Here, the Commission’s rules lack a specific provision outlining an employee’s right to judicial appeal. Moreno asserts the City failed to provide him with a termination letter stating the specific violations as required by the rules of why he was terminated, thereby denying him due process. Since this was only at the plea to the jurisdiction stage, the court held Moreno plead sufficient facts to trigger a waiver of immunity under the due process clause.  

Panel consists of Justices Alvarez, Rios, and Rodriguez. Affirmed. Memorandum Opinion by Justice Rios can be read here. Docket page with attorney information can be found here. 

Fourth Court of Appeals holds that operation of wheelchair ramp on public bus does not trigger waiver of immunity under Tort Claims Act

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VIA Metropolitan Transit Authority v. Manuel Flores, No. 04-21-00233-CV (Tex.App.—San Antonio, August 3, 2022)

This case stems from a trial court’s denial of VIA Metropolitan Transit Authority’s (“VIA”) plea to the jurisdiction, alleging no waiver of immunity exists for the claims. The Fourth Court of Appeals reversed the trial court’s ruling and dismisses all claims against VIA.

Manuel Flores (“Flores”) uses a motorized wheelchair. Several VIA buses, which provide public transportation, are equipped with wheelchair ramp devices that allow for accessibility to and from the bus.  When a VIA bus picked up Flores, the VIA driver lowered the wheelchair ramp and began preparing the wheelchair-accessible area of the bus to secure Flores once the bus resumed movement. While the driver was in the middle of preparations, Flores unsuccessfully attempted to board the bus.  He did not align the wheels of his wheelchair with the ramp, and fell to the ground, injuring himself.  Flores sued VIA, claiming the driver’s negligent operation or use of a motor-driven vehicle, specifically the bus and/or automated ramp device, established a waiver under the Texas Tort Claims Act (“TTCA”).

The Fourth Court of Appeals held that, under the ordinary, everyday meaning of the words “operation” and “use,” the deployment of a wheelchair ramp and preparation of the wheelchair-accessible area did not constitute helping Flores board the bus. Further, even if doing so did constitute the operation of the bus, the appellate court found that there was no nexus between Flores’ injury and the operation or use of the vehicle. Video recordings and time-stamped screenshots were admitted showing Flores’ unsuccessful attempt to board the bus, which included the driver still preparing the internal area away from where Flores fell. Since the driver was unaware that Flores had fallen until after the fact and because the driver did not even have an opportunity to assist Flores with boarding the bus, the court held that there would have been no nexus between Flores’ injury and the operation or use of a motor-driven vehicle.

As asides, the appellate court dismissed Flores’ argument that the driver failed to follow VIA policy, as Flores first had to establish waiver of immunity before invoking a claim. Further, Flores’ arguments citing compliance with federal law were moot because he not only failed to raise them at the trial level but also because the cited law did not waive VIA’s immunity. Ultimately, the Fourth Court of Appeals reversed the trial court’s denial of VIA’s plea to the jurisdiction, dismissing all of Flores’ claims.

If you would like to read this opinion, click here. Panel consists of Chief Justice Martinez and Justices Rios and Rodriguez. Memorandum opinion by Justice Rodriguez.

14th Court of Appeals in Houston holds TxDOT had actual notice of dangerous condition based on crash reports and information within record

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Texas Department of Transportation v Singh, 14-20-00694-CV (Tex. App. — Houston [14th Dist.], August 11, 2022).

Singh sued the Texas Department of Transportation for negligence after his vehicle crashed on a roadway TxDOT had recently rebuilt. The new highway surface was very slick when wet, and it had been raining the day of the accident. According to the crash report, six other spin-out crashes occurred in the same area on the same day. TxDOT filed a plea to the jurisdiction arguing, among other things, that Singh had failed to provide timely notice of claim. The trial court denied the plea and TxDOT appealed

After analyzing the pleadings and facts submitted, the court held there is some evidence that as of December 5, 2016, the day after the accident, TxDOT had subjective awareness that Amrinder Singh of a specified address and driver’s license number was involved in an automobile accident on December 4, 2016 at 6:50 a.m. in the 15500 block of Highway 290, a section of the highway that TxDOT had recently rebuilt. As a result, written claim notice was not needed as actual notice existed. TxDOT additionally had subjective awareness at that time that Singh had suffered possible injuries in the accident. Six other crashes occurred in the same area in the same timeframe due to the slickness of the new road surface when wet. The court held the plea was properly denied.

If you would like to reach this opinion click here.

14th Court of Appeals holds fact questions on “emergency” prevented granting of plea to the jurisdiction

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City of Houston v Arellano, 14-21-00117-CV (Tex. App. — Houston [14th Dist], August 11, 2022).

This is a vehicle accident/emergency responder case where the 14th Court of Appeals held fact questions exist as to whether the driver was responding to an actual emergency.

Dang was a maintenance mechanic for the City. As part of his duties, he maintained and repaired HVAC systems in City buildings. On the evening of the traffic accident, Dang was at home on-call. At approximately 10 p.m., he received a service call to notify him that a fire station had no heat. After the call, he immediately clocked in for work remotely. He drove to another fire station, dropped off his personal vehicle, and picked up his City work vehicle. Then, he began driving to the fire station that lacked heat. On the way, he collided with Arellano. Arellano filed suit against the City for personal injury. The City filed a motion for summary judgment which was denied. The City appealed.

When an employee is driving a vehicle owned by the employer, the employee is under a presumption to be acting within the course and scope of their employment. When it is unrelated, the presumption prevails. The court first held the City failed to adequately refute the presumption. So, Dang was legally acting within the course and scope of his employment. The court next analyzed whether Dang was responding to an “emergency”. After analyzing the facts in the record, the court determined a fact issue existed. As a result, it was proper to deny the motion.

If you would like to read this opinion click here

El Paso Court of Appeals holds automatic gate was not unreasonably dangerous simply because it could close automatically

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City of El Paso v. Maria Pina, No. 08-20-00159-CV (Tex. App. — El Paso, Aug. 8, 2022)

This is a premise defect case under the Texas Tort Claims Act where the El Paso Court of Appeals held an automatic gate is not unreasonably dangerous simply because it can close automatically.

Pina was involved in a motor vehicle accident with an automatic gate on city property. The entrance gate at the El Paso Police Academy closed on Pina’ car as she was driving onto the premises to attend a class. Pina claims that as she approached the gate, cars were freely entering and exiting, and the gate was not closing between vehicles. Thus, she was not aware the gate could close automatically while a car was going through it. As her vehicle was traveling through the gate, it began closing and struck her car. The collision damaged her vehicle and caused her to sustain bodily injury, according to the allegations in her petition. The City filed a plea to the jurisdiction asserting it had no actual knowledge of a dangerous condition prior to the incident and that no dangerous condition existed.

The court held that an automatic gate, simply because it opens and closes automatically on its own, is not an unreasonably dangerous condition. The key is whether it poses an unreasonable danger by virtue of its mere existence, which it does not. No evidence was submitted to indicate it was malfunctioning or posed any danger different from the normal conditions under which it operates. The court emphasized the “unreasonably” language as a requirement. A condition is not unreasonably dangerous simply because it is not foolproof. A premises owner is not an insurer of invitees to its premises. Further, no evidence existed that the City had actual knowledge the gate posed an unreasonably dangerous condition. Simply because the City knew the gate closed automatically is not actual knowledge of a dangerous condition. As a result, the plea should have been granted. The order was reversed and judgment rendered for the City.

If you would like to read this opinion click here.

Amarillo Court of Appeals holds AG had no jurisdiction to enforce specific gun sign against county

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Waller County, Texas, et al. v. Ken Paxton, Texas Attorney General (Tex. App. — Amarillo, August 17, 2022)

Ken Paxton, Attorney General of Texas, sued Waller County in 2016 asserting that the County was unlawfully attempting to prohibit licensed handgun owners carrying handguns from accessing portions of the county courthouse building in violation of section 411.209 of the Texas Government Code. Attorney General’s suit challenges the legality of signs posted at all four entrances to the Waller County Courthouse. Integral to their argument is the requirement the County violated the sign requirements of Penal Code sec. 30.06. The County filed a motion to dismiss for lack of jurisdiction. The trial court denied the motion and the County appealed.

A motion to dismiss based on a lack of subject matter jurisdiction is the functional equivalent of a plea to the jurisdiction. The Attorney General contends that the County’s immunity was waived under section 411.209(h) of the Texas Government Code states “[s]overeign immunity to suit is waived and abolished to the extent of liability created by this section.” TEX. GOV’T CODE ANN. § 411.209(h). However, when immunity is waived a plaintiff must “actually allege” a violation of the statute. Thus, the Attorney General had to plead facts sufficient to support his claim that the County violated the statute. The court’s inquiry is therefore on whether, at the inception of the suit, the Attorney General alleged facts that stated a cause of action under the statute in effect at the time. The court determined the County’s signs do not fall within the parameters of the statute in effect at the time this lawsuit was filed in 2016. For the purposes of this jurisdictional inquiry, the court need not reach the issue of whether the County’s signs or oral communications violate the current version of the statute. Therefore the plea should have been granted.

If you would like to read this opinion click here.

Texas Fourth Court of Appeals holds that merely investigating an injury does not constitute actual notice of claim

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Fanny Bellorin, Individually and on Behalf of and as Next of Friend of Derlin Hernandez v. City of San Antonio, No. 04-22-00003-CV, (Tex.App.—San Antonio July 13, 2022) (mem. op.)

This case stems from an appeal of the City of San Antonio’s (“COSA”) denied plea to the jurisdiction based upon lack of written or actual notice as required under the Texas Tort Claims Act (“TTCA”). The Fourth Court of Appeals reversed the denial and dismissed appellee’s claim.

Derlin Hernandez (“Hernandez”) was employed as a contractor/agent for COSA as part of a road maintenance crew. On September 29, 2020, Hernandez was injured when a vehicle, operated by a private individual, collided into a backhoe in which Hernandez was a passenger. Hernandez was ejected and run over by either the backhoe, the vehicle, or the trailer being towed by the vehicle. COSA personnel, including police, fire, and EMS, arrived to assess the situation, ultimately determining that the operation of the vehicle contributed to the collision. On June 23, 2021 (267 days after the incident), Hernandez’s counsel sent a notice of claim to COSA under Section 101.101 of the TTCA. The notice further alleged that COSA had actual notice of Hernandez’s injuries, then proceeded to join COSA in the pending suit. COSA filed a plea to the jurisdiction arguing no waiver of immunity due to no written or actual notice under the TTCA. The trial court denied the plea; this appeal followed.

The appellate court applied the facts of the case to the two means of providing notice under the TTCA. First, the appellate court acknowledged that the 267-day gap went well beyond the 180-day requirement under the TTCA as well as COSA’s own charter notice requirement deadline of 90 days after the occurrence of the incident. Second, the appellate court found no actual notice of the claim, which generally requires that the entity be subjectively aware that it may be responsible for the claimed injury. Here, COSA merely arrived on scene after the incident and the report produced as a result of the investigation did not even imply, let alone expressly state, that COSA was at fault. The court ultimately emphasized a Texas Supreme Court’s opinion, holding “knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes”

Due to the fact that the TTCA notice requirement is a jurisdictional prerequisite, the appellate court reversed the trial court’s denial of COSA’s plea to the jurisdiction, dismissing appellee’s claims against the City.

If you would like to read this opinion, click here. Panel consists of Chief Justice Martinez and Justices Rios and Valenzuela. Memorandum opinion by Justice Valenzuela.

Employee not entitled to official immunity as asserted in summary judgement

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University of the Incarnate Word v. Valerie Redus, et al., No.04-21-00115-CV, (Tex.App.—San Antonio, July 29, 2022)

This appeal stems from a deadly force claim allegedly committed by a University of the Incarnate Word (“UIW”) police officer. UIW appealed a denial of its motion for summary judgment. The Fourth Court of Appeals affirmed the denial.

Student Cameron Redus (“Redus”) was stopped by UIW Cpl. Christopher Carter (“Carter”) for suspicion of driving while intoxicated. A physical altercation ensued after Carter attempted to arrest Redus, which ultimately resulted in Carter shooting Redus five times, killing him. Redus’ parents brought forth a wrongful death and survival action against UIW and Carter, alleging negligence and gross negligence. UIW filed a traditional motion for summary judgment based on Carter’s qualified immunity and, derivatively, UIW’s immunity from suit. The trial court denied the motion and UIW filed this appeal.

To establish official immunity, the state equivalent of what is commonly known as “qualified immunity,” the defendant must conclusively establish that the employee was 1) performing a discretionary duty, 2) within the scope of the employee’s authority, and 3) the performance of that duty was done in good faith. The only element in dispute was whether Carter was acting in good faith. The crux of the appellate court’s analysis rests upon a previous holding by this court (Saenz v. Gonzalez in 2002) that, where underlying facts are in dispute, the court cannot consider a defendant expert’s affidavit establishes good faith because the disputed fact issue precludes summary judgment. Here, UIW was relying on sworn testimony and affidavits which state that Redus was not only the aggressor, but that he had taken Carter’s baton and was using it to assault Carter. However, appellee’s testimony, affidavits, and even the audio during the incident called into question whether Redus was the initial aggressor or had even gained possession of Carter’s baton. Because the underlying fact of whether Redus was the aggressor underlay UIW’s argument that Carter was acting in good faith, the appellate court found that the evidence created a material fact issue precluding the grant of immunity at this stage. The appellate court also made an effort to note that UIW further failed to make any argument for official immunity based on the assumption that appellee’s version of the facts was taken as true. As such, the appellate court affirmed the trial court’s denial of UIW’s motion for summary judgment.

If you would like to read this opinion, click here. Panel consists of Chief Justice Martinez and Justices Alvarez and Rodriguez. Opinion by Justice Rodriguez.

First District Court of Appeals holds property owner could not bring a takings claim based on judicial order regarding substandard building

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Jaime Jaramillo v. The City of Texas City, 01-20-00654-CV, (Tex. App.—Houston [1st Dist.], Feb. 8, 2022, no pet. h.) (mem. op.).

This is a takings case brought after the City initiated an enforcement action for a dilapidated building. The First District Court of Appeals affirmed the dismissal of the property owner’s claims.

Jaramillo entered into an Agreed Order of Abatement with the City where the City would be able to abate and demolish the structures on the real property belonging to Jaramillo any time after a certain date if he did not comply with the ordinances and the International Property Maintenance Code. After reviewing the Agreed Order with the prosecutor and signing it, Jaramillo filed suit two weeks later claiming a taking of his property, denial of procedural due process, fraud, and civil conspiracy. The City filed a motion to dismiss for want of jurisdiction due to entering an unappealable order and sovereign immunity. The trial court granted the motion. Jaramillo appealed.

The court found that there was no waiver of immunity asserted as immunity cannot be waived for an intentional tort.  It further found civil conspiracy is a derivative tort; therefore, it cannot stand alone. Under his due process claim, Jaramillo agreed in the order that the building was substandard.  A court, not an administrative body, entered the order based on the agreement. As a result, no procedural due process was violated.  Jaramillo failed to preserve any errors before accepting and signing the Agreed Order. The Order was affirmed.

Panel consists of Chief Justice Radack, and Justices Rivas-Molloy and Guerra. Memorandum Opinion by Justice Rivas-Molloy can be read here. Docket page with attorney information found here.

Texas Supreme Court holds the law requires more than conclusory references to the statute’s elements in order to waive immunity

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Patrick Von Dohlen, et. al., v City of San Antonio, 20-0725 (Tex. April 1, 2022)

This is a declaratory judgment – statutory cause of action case brought against the City of San Antonio (“City”) for violating Chapter 2400 of the Texas Government Code. The Texas Supreme Court held the Plaintiffs failed to allege a proper waiver under the statute but remanded for an ability to cure the defect.

The city council for the City of San Antonio declined to allow Chick-fil-A to operate a concession area within the City’s airport. The Plaintiffs alleged the action was taken due to councilmember comments opposing the religious views of the company. Specifically, the company has a legacy of anti-LGBTQ behavior. Later, the Legislature passed TEX. GOV’T CODE § 2400.002, which prohibits a city from taking “any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.”  Four years later, the Plaintiffs sued the City and asserted it was in violation of this statutory provision. The City challenged jurisdiction asserting the law is not retroactive, and lack of standing due to no distinct injury from the general public. The trial court denied the plea, but the court of appeals reversed and dismissed the claims. Plaintiffs appealed.

When a statute waives immunity, a plaintiff must still plead an actual violation and mere references to the statute are insufficient. Chapter 2400 explicitly waives sovereign and governmental immunity when a person “alleges” a violation of Section 2400.002.  However, the petition’s alleged facts all occurred prior to the enactment of Chapter 2400 and nothing afterward. While the Plaintiffs allege the City’s violation is continuing in nature, they do not allege any facts to support this. Here, Plaintiffs do not plead sufficient facts to “actually allege a violation” of Chapter 2400 because they fail to point to any specific “action” the City took on or after Chapter 2400 was effective. However, this does not mean the City has negated the ability to plead such a claim. Texas law does not favor striking defective pleadings without providing plaintiffs an opportunity to replead.  As a result, the case is remanded to allow the ability to replead.

If you would like to read this opinion click here. JUSTICE HUDDLE delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby, Justice Bland, and Justice Young joined. JUSTICE BLACKLOCK filed an opinion concurring in the judgment, in which Justice Devine joined and is found here

US 5th Circuit held officer entitled to qualified immunity due to suspects resisting placement in vehicle

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Craig, et al. v. Martin, 19-10013, (5th Cir. Feb. 15, 2022)

Special guest author: Joshua Galicia, Law Offices of Ryan Henry, PLLC

This Fifth Circuit appeal stems from a series of §1983 claims, all of which were dismissed under the appellant’s motion for summary judgment except the officer’s assertion of qualified immunity for the excessive force claims. The Fifth Circuit reversed the trial court’s denial, determined the officer was entitled to qualified immunity and dismissed the claims.

Officer William Martin (“Martin”) received a call about a “disturbance” involving A.C., Jacqueline Craig’s (“Craig”) minor child. Martin responded alone. On scene, Martin activated his bodycam and began a conversation with Craig, which escalated in hostility until Craig was yelling at Martin. Craig’s adult child Brea Hymond (“Hymond”) was recording the event on her cell phone.  Craig’s minor children are J.H. and K.H. J.H. stepped in between Craig and Martin, to which Martin grabbed J.H. and pulled her out from between them. K.H. then shoved Martin from behind. Martin proceeded to tase Craig to the ground and then handcuffed her. Martin then restrained J.H. and proceeded to walk Craig and J.H. to his vehicle. K.H. stood in front of the passenger door, in an apparent attempt to prevent Craig and J.H. from being placed within. Martin ordered K.H. to move and, upon refusing to do so, struck K.H., after which she moved out of the way. J.H. then further resisted being placed in the vehicle by keeping her leg out until Martin kicked her leg once, after which she placed her leg inside the vehicle.  Finally, Martin placed Hymond under arrest, who had been verbally harassing Martin throughout the previous events. Hymond refused to identify herself, so Martin raised her handcuffed arms behind her back to gain compliance.  Craig, individually and on behalf of her minor children, K.H. and J.H., and Hymond sued Martin for unlawful arrest and excessive use of force. The trial court dismissed most of the claims, but denied Martin’s qualified immunity defense. Martin appealed.

The Fifth Circuit divided its analysis into two parts: whether the officer’s actions were excessive and, if they were, whether the actions “violated clearly established statutory or constitutional rights of which a reasonable [officer] would have known.” For the first part, the Fifth Circuit found that the officer’s actions were reasonable given the nature of the actions taken against Martin by each party, particularly that he was by himself for the majority of these interactions while each individual was performing said actions and that there was video evidence, which contradicted some of the appellees’ allegations in their pleadings. For the second part, even if the officer’s actions had been found to be excessive, the precedent cited by appellees was noted as failing to find caselaw which showed individuals who were actively resisting officers as was present in this case to the point that Martin should have known he was violating clearly established rights. The court reversed the trial court order, held Martin was entitled to qualified immunity, and dismissed the remaining claims.

If you would like to read this opinion click here. The panel consists of Chief Circuit Judge Owen and Circuit Judges Barksdale and Duncan. Opinion by Chief Circuit Judge Owen.

Fifth Circuit holds that there is no per se rule permitting pressure placed on a resisting suspect’s back and that reasonableness of use of force can change in a single interaction

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Vicki Timpa, et al. v. Dustin Dillard, et al., 20-10876, 2021 WL 5915553 (5th Cir. Dec. 15, 2021)

Special guest author Joshua Galicia

This is a §1983 excessive force and bystander liability case appealed from the District Court of the Northern District of Texas wherein the district court granted appellees’ motion for summary judgment, dismissing both claims on the grounds that the appellees had qualified immunity. The Fifth Circuit court partly reverse-in-part and affirmed-in-part

In Dallas, Texas, Anthony Timpa called 911 requesting assistance due to a possible mental health episode and stating he had ingested cocaine. A dispatcher requested DPD officers respond to the call and that the individual may be experiencing mental health issues. For mental health calls, DPD general instructs that “as soon as [a person is] brought under control, they are placed in an upright position (if possible) or on their side.” Additional instructions were provided for individuals suffering from a state of agitation normally brought about by drug use, including cocaine. In this case, Officers Dillard, Dominguez, Vasquez, and supervising officers Rivera and Mansell arrived after Timpa had been cuffed by private security guards. Timpa began to roll towards a roadway, so Officer Dillard placed his knee on Anthony’s back, keeping it there for approximately fourteen minutes. Around nine minutes in, Timpa ceased kicking, but continued moving his head back and forth then, for the final three-and-a-half minutes, Anthony became limp and unresponsive. After Dillard removed his knee and paramedics placed Timpa on a gurney, they determined that Timpa was dead. The Dallas County medical examiner conducted an autopsy and determined that Timpa had been suffering from “excited delirium syndrome” and had died from sudden cardiac arrest brought upon by the presence of cocaine in his system as well as stress associated with physical restraint. At trial, Plaintiffs’ medical expert testified that Timpa would have lived had he been restrained without force being applied to his back. Timpa’s family brought suit against Officer Dillard for excessive force and unlawful deadly force and the other four officers for bystander liability. On summary judgment, the district court granted the defendants qualified immunity for both the excessive force and bystander liability claims. The plaintiffs appealed.

The Fifth Circuit court found that Dillard’s arguments for entitlement to qualified immunity mischaracterized precedential case law regarding excessive force. Specifically, Dillard articulated a per se rule by the Fifth Circuit that ‘[the use of a] prone restraint [on] a resisting suspect does not violate the Fourth Amendment even when pressure is applied to the suspect’s back.’ In fact, the United States Supreme Court has specifically rejected any such rule. Further, the Fifth Circuit indicated that excessive/deadly force claims are not analyzed via a generalized view of the incident, but rather via a fact-intensive review of key points throughout, as changing circumstances could require an adjustment of what is considered reasonable force. Additionally, the Fifth Circuit court kept in mind that Dillard had received training specifically on interacting with suspects suffering a mental health episode and those under the influence of certain drugs, like cocaine. In this case, the court considered that Timpa himself called 911 seeking help, that he was already cuffed when Dillard arrived, that Dillard was aware that Timpa was obese (which naturally makes breathing harder when in the prone position), that Dillard was aware Timpa had stated he’d ingested cocaine (which exacerbates any breathing difficulties), that Timpa’s head movements (which Dillard argued was continued resistance) were actually signs that Timpa was attempting to breathe, and that Timpa had gone limp several minutes before Dillard removed his knee from Timpa’s back. Ultimately, the court found that there were genuine material fact issues as to excessive force as well as the use of deadly force.

As to bystander liability, the Fifth Circuit Court found that genuine issues of material fact existed for three of the four officers. Specifically, the court found that there were questions of fact whether the three officers knew Dillard was violating Timpa’s constitutional rights, whether they had reasonable opportunity to prevent Dillard from continuing to place his knee on Timpa’s back, and whether they chose not to act accordingly. The fourth officer left before Timpa stopped moving and did not return to the scene until after Dillard had removed his knee.

The Fifth Circuit reversed the trial court’s order as to Dillard and three of the other officers and affirmed the granting of summary judgment as to the fourth officer.

If you would like to read this opinion click here. Panel consists of Circuit Judges Clement, Southwick, and Wilett. Opinion by Circuit Judge Edith Brown Clement.

Texas Supreme Court holds officer entitled to official immunity for turning on his lights.

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City of San Antonio v Riojas, 20-0293 (Tex. Feb. 18, 2022)

The Texas Supreme Court held an officer who turned his lights on to warn motorists of a traffic slowdown was entitled to official immunity.

Officer Tristan noticed a traffic slowdown and turned on his lights to warn motorists behind him.  Tristan observed a white sedan cross multiple lanes of traffic and exit the expressway. Officer Tristan then pulled onto the shoulder and radioed another officer to stop the sedan for making an improper lane change. While these events were occurring, Armando Riojas was riding his motorcycle behind Officer Tristan’s vehicle but three lanes over and directly behind a car driven by Vela. When the car in front of her slowed, Vela braked in response. Riojas swerved to avoid a collision but lost control of his motorcycle. Witnesses accused Tristan of causing the crash, including accusing him of scaring everyone on the stretch of road by turning on his lights. Riojas sued the City, alleging that Officer Tristan was negligent in turning on his emergency lights.  The City filed a plea to the jurisdiction which was denied and which the court of appeals affirmed. They determined Tristan was not entitled to official immunity. The City appealed.

Riojas concedes that by turning on his lights, Officer Tristan was performing a discretionary function within the scope of his employment. Riojas contends, however, that the City has not proven conclusively that Officer Tristan was acting in good faith. The need–risk assessment required for official immunity should not place an onerous burden on law enforcement.  Further, the need–risk balancing requirement does not go beyond the pursuit and emergency-response contexts.  The purpose for official immunity is most salient in the context of street-level police work, which frequently requires quick and decisive action in the face of volatile and changing circumstances. As a result, to be entitled to official immunity, Tristan had to only establish a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed at the time. Riojas had to then show that no reasonable officer in Tristan’s position could have believed that the circumstances justified his conduct. Here, there was no suspect, no arrest, and no inherent danger to the public.  As this was not a pursuit case, the needs-risk analysis is not required or proper. Officer Tristian established his actions were reasonable and Riojas did not establish that no reasonable officer could have made the same call. As a result, Officer Tristan was entitled to official immunity as a matter of law, which in turn, removes the waiver of immunity from the City.

If you would like to read this opinion click here. Opinion by Chief Justice Hecht.

In police pursuit case, Texas Supreme Court holds 1) deviation from policy waives immunity only if lights or sirens are required, 2) officer exceeding the speed limit is part and parcel of a police chase and not not inherently reckless and 3) no independent waiver of immunity for negligent implementation of policy

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City of San Antonio v Maspero, et al. 19-1144 (Tex. Feb. 18, 2022)

This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Texas Supreme Court dismissed the Plaintiffs’ claims for lack of jurisdiction.

Plaintiffs contend that their injuries arose from a San Antonio police officer’s vehicular pursuit of a fleeing suspect who crashed into their car. The chase resulted from a joint drug task force attempted to stop a car leaving suspected drug trafficking ring location. Officer Kimberly Kory was assigned to assist with the investigation. When the suspect began to flee, the task force requested assistance but did not provide any specifics about how to respond to the fleeing vehicle. SAPD’s “General Manual” contains detailed procedures governing the vehicular pursuit of such suspects.  The record demonstrated the suspect sped in heavy traffic and through active school zones. The suspect got turned around and sped past Kory, missing her vehicle, but collided with an oncoming vehicle, carrying the Plaintiffs.  They sued the City, which filed a plea to the jurisdiction.  The City asserted the emergency response exception to the waiver of immunity.  The trial court granted the plea, but the court of appeals reversed.

Under Texas Transportation Code Section 546.006, a driver of an emergency vehicle must drive “with appropriate regard for the safety of all persons” and is not relieved of “the consequences of reckless disregard for the safety of others.” Section 546.003 states “the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals.”  Plaintiffs argued that since Kory deviated from the SAPD policy on such pursuits, she cannot take advantage of the Transportation Code section. The Court disagreed, holding §545.003 only required adherence to policies regarding use of lights and sirens. At the point where the suspects collided with the Plaintiffs’ vehicle, Kory was not speeding or taking action which would have required lights and sirens. Further, the court found the use of her siren was inconsequential for purposes of the causal nexus. Plaintiffs failed to explain how their injuries arose from Officer Kory’s alleged failure to use her siren in conjunction with the lights.  Based on the undisputed facts asserted, the use of a siren would not have changed the collision. Further, the court does not believe Kory’s actions constitute recklessness or even that a fact question exists. Law enforcement must retain discretion to assess and balance these types of risks using reasoned judgment.  Kory had specific instructions to stop the suspect. She did not chase him into an obviously dangerous area or force him to crash. Isolated, minor instances of Kory speeding or swerving do not bypass the emergency exception under the TCAA. A police officer’s speeding and swerving during a pursuit are not inherently reckless actions. Exceeding the speed limit is part and parcel of a police chase.  Further, no evidence suggests that the speeding itself was a cause of the crash.  Further, the evidence shows Kory engaged in some degree of risk assessment while in pursuit.  Finally, the Court disagreed with the court of appeals holding that the City’s immunity is waived for the negligent implementation of policy. The Court clarified there is no independent waiver of immunity for negligent implementation of policy.  When a waiver already exists, but the discretionary exception may apply, that is when the distinction between negligent formation of policy and negligent implementation of that policy kicks in.  The distinction only applies when evaluating whether the discretionary exception to an existing waiver is to apply. As a result, in this case, there is no waiver of immunity and the trial court’s order is reinstated.

If you would like to read this opinion click here. Opinion by Justice Lehrman.