Dallas Court of Appeals holds officer entered intersection in good faith – entitled to official immunity

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City of Dallas v. Rosa Rodriguez, 05-19-00045-CV, (Tex. App. – Dallas Texas, August 7, 2019)

In this Texas Tort Claims Act (“TTCA”)/motor vehicle accident/emergency responder case, the Dallas Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Rodriguez was injured when a Dallas police officer disregarded a red light and collided with her.  The officer driving the vehicle provided the accident investigation as well as her own affidavit, noting she was responding to an emergency call regarding a person who was breaking windows and threatening to shoot a woman in her home.

The officer stated she approached the intersection and came to a complete stop before proceeding through the intersection. The officer also stated that “all traffic on the northbound side had stopped and was giving [her] passage.” Rodriguez asserted the officer did not stop, and the PD had a policy requiring officers to come to a complete stop. It was discovered after the accident that the officer’s lights and sirens were not working properly, based on dash cam footage. The video’s GPS “speed” indication shows the officer’s speed at 23 mph just before she appears to come to a complete stop. The speed indicator quickly drops to 9 mph and then to 2  mph after after she stopped; the indicator immediately shows her speed at 3 mph as she slowly entered the intersection. The officer’s affidavit stated the potential danger posed by proceeding through the intersection was far less, considering all factors, than the danger posed to the officers and victims involved in the emergency at issue.  The City filed a plea to the jurisdiction arguing official immunity, which was denied.

The court first noted that Rodriguez’ objections to the officer’s affidavit (i.e., hearsay and best evidence) were not sufficiently specific. The court held that the “stop at the intersection is very brief, but the stop is apparent from the video, and it is clear that the GPS simply did not have time to read zero before” the officer started moving again. The video also indicates “triggers” including lights, siren, and brakes. The officer testified she understood that, in making discretionary decisions during emergency calls, she must weigh the need to respond urgently to the emergency call against the risk involved to the general public when responding to the emergency. She explained her thought process on the record.  The court held that the fact a collision occurred does not equate to a showing that the law was violated and is insufficient to raise a fact issue on recklessness.  An officer’s own affidavit can establish good faith, and an officer’s good faith is not rebutted by evidence that she violated department policy.  The record shows the need/risk analysis performed by the officer. Rodriguez failed to establish a fact issue as to recklessness. As a result, the plea should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices Bridges, Brown and Nowell. The attorneys listed for Dallas County are Bonnie Snell, Amy I. Messer, James B. Pinson, Jason G. Schuette, and Nicholas Palmer. The attorneys listed for Rosa Rodriguez are Susan B. Smith, Billy McGill Jr., and Briana Crozier.

U.S. 5th Circuit holds deputy entitled to qualified immunity on state-created-danger claims, but not wrongful arrest claims

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Keller v. Fleming, 18-60081(5th Cir. July 23, 2019)

In this §1983 case, the U.S. 5th Circuit reversed the denial of an officer’s qualified immunity defense for a state-created-danger claim but affirmed denial based on unlawful arrest claims.

Gerald Simpson was struck and killed by a motor vehicle as he walked along a Mississippi highway in darkness after Simpson had been dropped off at the county line by Sheriff’s Deputy Darrin Fleming.  Simpson was originally stopped while walking down the roadway, but his speech was unintelligible.  The Plaintiffs alleged Deputy Fleming acted pursuant to an Attala County custom of picking up those viewed as vagrants and dropping them off in neighboring jurisdictions to rid the county of vagrants. The submitted evidence establishes Deputy Fleming put Simpson in the backseat of his vehicle and asked him where he resided, but Simpson was unable to articulate where he lived and merely pointed west on Highway 12, in the direction of Durant, Mississippi. Fleming drove Simpson in that direction to the point he reached the end of Attala jurisdiction and let Simpson out.  Fleming was not aware Simpson had recently been released from a state hospital after twelve years of confinement for certain developmental disabilities, including a speech impediment. The family sued Fleming and the County and Fleming filed a motion for summary judgment arguing qualified immunity.  The motion was granted in part and denied in part. Fleming appealed.

The Fourth Amendment generally prohibits an officer from seizing and detaining an individual without “probable cause.” A police officer may approach a person for purposes of investigating possible criminal behavior (i.e. Terry stop). The court determined a reasonable person in Simpson’s position would not have felt free to leave. The transport was also not reasonable given the circumstances. The seizure was not for Terry stop purposes and was significantly more intrusive than a brief detention for identification or investigatory purposes.  It also was law previously established which Deputy Fleming should have known. As a result, it was proper to deny qualified immunity for the Fourth Amendment claim.

Next, for Fourteenth Amendment purposes, as a general matter, a State does not have an affirmative duty to protect an individual from violence by private actors. An exception exists in other circuits for a “state-created-danger” theory where the entity and plaintiff are in a special relationship. However, a “special relationship” only arises when a person is involuntarily confined or otherwise restrained against his will pursuant to a governmental order.  The law was not clearly defined at the time to allow Deputy Fleming to know it might apply. The Fifth Circuit has never recognized this “state-created-danger” exception. As a result, the Fourteenth Amendment claims should have been dismissed. Finally, Plaintiffs have not demonstrated a clearly established substantive due process right on the facts they allege.

If you would like to read this opinion click here. Panel consists of Chief Judge Stewar, Judges Willett and Dennis.  Opinion by Justice Dennis.

U.S. Supreme Court holds Clearly Establish Prong of qualified immunity defense must not be defined with a high degree of generality.

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City of Escondido v Emmons, 17-1660 (U.S. January 7, 2019)

City of Escondido police received a domestic violence 911 call from Maggie Emmons. Officer Jake Houchin responded to the scene and reported Emmons had sustained injuries caused by her husband. The officers arrested her husband. Several weeks later, another domestic violence call was placed, but this time it was called in by mother of Emmon’s roommate, Douglas (who was not present at the apartment). Officer Houchin again responded. The body cameras revealed that when trying to gain entry, a man in the apartment also told Emmons to back away from the window and not let the officers in. Shortly afterwards a man exited the apartment and tried to move past the officers. Officer Craig stopped the man, took him quickly to the ground, and handcuffed him. The video shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. He was arrested for a misdemeanor offense of resisting and delaying a police officer. The man turned out to be Emmon’s father, who sued for wrongful arrest.  The officers filed for qualified immunity, which the trial court granted but the U.S. 9th Circuit reversed.

The U.S. Supreme Court broke apart the 9th Circuit’s analysis and questioned the lack of reasoning within the opinion. The Ninth Circuit’s entire relevant analysis was simply “The right to be free of excessive force was clearly established at the time of the events in question.”  The Supreme Court held “With respect to Sergeant Toth, the Ninth Circuit offered no explanation for its decision. The court’s unexplained reinstatement of the excessive force claim against Sergeant Toth was erroneous—and quite puzzling in light of the District Court’s conclusion that ‘only Defendant Craig was involved in the excessive force claim’ and that Emmons ‘fail[ed] to identify contrary evidence.’”  The 9th Circuit errored as the Supreme Court has repeatedly told courts the clearly established right must be defined with specificity. Courts may not define clearly established law at a high level of generality. “In this case, the Court of Appeals contravened those settled principles. The Court of Appeals should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”  The opinion is reversed and remanded for further analysis.

If you would like to read this opinion click here. Per Curiam opinion.

U.S. Supreme Court holds 1st Amendment retaliatory arrest claim barred because probable cause exists and plaintiff has no objective evidence of retaliatory motive

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Nieves, et al., v Bartlett, 17–1174 (May 28, 2019)

In this First Amendment/retaliatory arrest/§1983 case the U.S. Supreme Court held the presence of probable cause eliminates the First Amendment claims as a matter of law. [Comment: warning this is a 48-page set of opinions, concurrences and dissents].

Bartlett was arrested by police officers Nieves and Weight for disorderly conduct and resisting arrest during a winter sports festival in Alaska. During the event Nieves and Weight were separately speaking with individuals at the festival about various law enforcement aspects when Bartlett approached each and interfered with the questioning of patrons. Due to the fact Bartlett appeared intoxicated, after the second time Bartlett allegedly interfered, he was arrested. It was also during this second instance that Bartlett allegedly aggressively attempted to physically intimidate one officer by stepping into his personal space and yelling at him. Bartlett sued under 42 U. S. C. §1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech.  The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest Bartlett precluded his claim. The U.S. Court of Appeals for the Ninth Circuit reversed and the officers appealed.

As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.  It is not enough to show that an official acted with a retaliatory motive. The motive must cause the injury under a “but-for” analysis.  The analysis is complex as it is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff ’s potentially criminal conduct.  Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving.  After a highly detailed analysis of common-law and current precedent, the Court concluded the proper test was an objective standard test, which is resolved if the officers had probable cause to make an arrest.  The subjective intent of the officers is therefore taken out of the analysis.  However, the Court adopted an exception for “minor” offenses which allows a plaintiff to present objective evidence others similarly situation for these minor offenses are not arrested.  Because there was probable cause to arrest Bartlett and he presented no objective evidence others in his situation were not, his retaliatory arrest claim fails as a matter of law.

If you would like to read this opinion click here. ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined except as to Part II–D. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed an opinion concurring in the judgment in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion.

Texas Supreme Court holds County still retains immunity from liability after inmate fell using broken chair

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Tarrant County v Roderick Bonner, 18-0431 (Tex. May 24, 2019)

This is an inmate Texas Tort Claims Act (TTCA) claim where the Texas Supreme Court held Tarrant County (County) was immune from liability for a defective chair while treating an inmate for his medical condition.

A deputy accidently damaged the leg of a chair while working at the jail where Bonner was housed. The deputy notified his supervisor of the damaged chair, who instructed the deputy to place the chair in the multipurpose room before filling out a report. Bonner, an inmate, had diabetes and entered the multipurpose room for treatment.  When he attempted to use the chair, it collapsed. Bonner sued for injuries under the TTCA asserting the negligent use of personal property.  At the summary judgment stage, the County argued despite the waiver under the TTCA, it retained immunity under the Texas Code of Criminal Procedure (TCCP) and Texas Government Code. The trial court granted the motion, the court of appeals reversed, and the County filed a petition for review.

Under the TCCP article 42.20, certain individuals and governmental entities are not liable for damages arising from action or inaction in connection with an inmate activity, including treatment activities, if the action or inaction was performed in an official capacity and was not performed with conscious indifference. Similarly, under the Texas Government Code § 497.096 a county and sheriff’s department employees are not liable for damages arising from action or inaction in connection with an inmate or offender treatment activity if the action or inaction was not intentional, willfully negligent or performed with conscious indifference or reckless disregard. After analyzing the statutory sections, the Court held Bonner’s allegations are more than simply the County failed to warn of the broken chair, it was the use of the chair during treatment which caused his injury. The two statutes immunize negligent acts and omissions that are reasonably related to the covered programs or activities, even when the relationship is indirect. As a practical matter, this includes acts or omissions, which give rise to damages during covered programs and activities. The Court recognized the statutes only immunize the County from liability to the extent its corporate actions or omissions were not performed with conscious indifference or reckless disregard for the safety of others. As a result, it was an immunity to liability only, not an immunity from suit. The County must assert it qualifies for the conditions, thereby placing the burden on the County. Once the defendant establishes that those conditions exist, the burden falls on the plaintiff to establish the statute’s exception to that defense, which is expressed as a heightened liability standard. The Court referred to this as a form of statutory immunity. Under this heightened standard, a defendant must have actual subjective knowledge of an extreme risk of serious harm.  Based on the record, the Court concluded no evidence exists of conscious indifference towards Bonner. As a result, the trial court’s granting of the summary judgment was proper.

Justice Boyd concurred in the judgment, but wrote separately as he disagreed (1) conscious indifference is “the same as” gross negligence or (2) a person cannot be consciously indifferent to a risk that is less than “extreme.”

If you would like to read this opinion click here.  Opinion by Justice Devine.  Justice Boyd wrote a concurring opinion found here. The docket page with attorney information can be found here.

14th Court of Appeals held Authority was not immune from claim of accidental shooting simply because it asserted the officer did not possess the the discharging weapon

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Metropolitan Transit Authority of Harris County, Texas v. Terry Smith 14-17-00807-CV (Tex, App. – Houston, [14th Dist.] Dec. 11, 2018)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act/negligent use of tangible property case where the Fourteenth Court of Appeals affirmed the denial.

Houston police officer Terry Smith was on patrol accompanied by officer Gregory Hudson of the Metropolitan Transit Authority of Harris County (hereinafter “METRO”).  One officer directed vehicles to pull into a nearby Sears’ parking lot where the other officer issued citations. While Smith issued a citation, Hudson waited nearby where the officers had parked their motorcycles.  After issuing the citation, but before everyone had left the scene, Smith bent down to put his ticket book in the motorcycle’s saddlebag when a gun went off, causing a bullet to strike Smith in the abdomen. The source of the discharge was unknown. An extensive investigation eliminated a drive-by shooting, sniper attack, and a host of other scenarios. After ruling out these scenarios, investigators believed Smith’s shooting may have been an accidental discharge of Hudson’s firearm.  However, ultimately the investigation was inconclusive as to the source.  Smith later sued METRO for his personal injuries. METRO filed a plea to the jurisdiction, which was denied. METRO appealed.

METRO first asserted Smith’s pleadings, even if true, did not establish a waiver of immunity as Hudson did not “use” the weapon, even if his gun was the discharging firearm. The court disagreed. The government brings personal property into action or service or employs personal property through its employees. No case or statute states that a governmental entity must issue, provide, or furnish its employee tangible personal property before it can be liable for injuries caused by the employee’s use of tangible personal property. In fact, the court cited cases to the opposite. It is the employees negligent use of tangible personal property (from whatever source) that triggers a waiver. The court further rejected the argument that Smith must sue the employee who used the property, not METRO. If Hudson had brought the .22 weapon into use, while in the course and scope of employment, the employing entity is the proper party. Next, METRO asserted a lack of causation because no determination was made as to where the shot actually originated. While Hudson’s testimony was that he has never carried a .22 caliber weapon, Smith presented a fact issue as to the cause. The investigation eliminated various other scenarios and revealed Hudson was the only one in the determined proximity, possible angle, and position which could have caused the shot. Finally, the court rejected the argument Hudson was entitled to official immunity as METRO presented no evidence a reasonably prudent officer might have believed his actions were justified under the circumstances. Hudson’s subjective belief that he did not shoot Smith does not objectively demonstrate that a reasonably prudent officer might have believed accidentally shooting Smith while writing traffic tickets was somehow justified.  The plea was properly denied.

If you would like to read this opinion click here. Panel consists of Justice Busby, Justice Brown and Justice Jewell. The attorney listed for the Metropolitan Transit Authority of Harris County, Texas is John Bohn. The attorney listed for Smith is Brant Stogner.

Officer entitled to official immunity after court examined needs/risk analysis performed by officer as he entered intersection

City of Dallas v. Blanca K. Hernandez-Guerrero, et al., 05-18-00033-CV (Tex. App. – Dallas, December 7, 2018)

This is a Texas Tort Claims Act/emergency responder/motor vehicle accident case where the Dallas Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims.

Blanca Hernandez-Guerrero was a passenger in a vehicle that was struck by the unknown driver of a city-owned marked police car. After she filed suit, which was consolidated with other suits arising from the same accident, the City filed a plea to the jurisdiction.  The plea was denied, and the City appealed.

The City asserted Dallas police officer Antwan Dunn was dispatched to an emergency call at a group home where a man stole a purse, threatened to kill staff and residents, and was potentially armed with a knife. Dunn activated his emergency lights and siren and proceeded to the location.  At an intersection where his light was red, Dunn applied his brakes and slowed to clear the intersection, then proceeded when he believed the intersection was safe. Dunn’s vehicle was struck by the vehicle were Hernandez-Guerrero was a passenger. The dash camera video from Dunn’s vehicle showed his emergency lights and siren were engaged for five minutes before he approached the intersection, and at least thirteen vehicles pulled over for him. While Dunn did not come to a complete stop before entering the intersection and was reprimanded by the department for a policy violation, these do not indicate gross negligence. A governmental employee also has official immunity for the performance of discretionary duties within the scope of the employee’s authority, provided the employee acts in good faith including a  “needs/risk” analysis. The court analyzed Dunn’s affidavit, what was going through is head just before he entered the intersection, his evaluation of the needs/risk analysis, his perception of the risks, etc. The court held the potential danger posed by proceeding through the intersection was far less than the danger posed to the potential victims at the location of the reported emergency.  Dunn was entitled to official immunity, thereby also removing any waiver of immunity for the City.  The plea should have been granted.

If you would like to read this opinion click here. Justice Bridges, Justice Francis and Justice Lang-Miers.  Memorandum Opinion by Justice Bridges.

Lack of due care finding by accident review board is evidence only of negligence, not recklessness under emergency responder exception to TTCA

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Harris County v. George J. Spears, 14-17-00662-CV (Tex. App. – Houston [14th Dist.], September 25, 2018)

This is an interlocutory appeal where the Fourteenth Court of Appeals reversed the denial of the County’s plea to the jurisdiction in this emergency responder/vehicular accident case and rendered judgment for the County.

While responding to an emergency call (i.e. possible suicide and medical emergency), Deputy Corporal Baskins collided with Spears at an intersection. As Baskins approached the intersection he slowed almost to a complete stop.  The cars moved to permit Deputy Baskins to proceed through the intersection. As Baskins drove through the intersection, a vehicle driven by Spears hit the rear passenger side of his patrol vehicle. The vehicle’s siren clearly can be heard in the dash cam video.  The County’s accident review board noted Baskins failed to use “due care” by not clearing the intersection first and issued a 1-day suspension. The County filed a combined motion for summary judgment and plea to the jurisdiction, which the trial court denied. The County appealed.

The emergency responder provision of the Texas Tort Claims Act (“TTCA”) retains immunity unless a responder drives with “reckless disregard for the safety of others.”  The burden of proof is on the plaintiff to show that the emergency response exception does not apply.  The term “emergency” is interpreted broadly under the TTCA.   Deputy Baskins’s affidavit stated the importance to preserve the scene before family arrive and the varying needs when responding to such calls. The evidence established an emergency existed. Further, Spear’s arguments do not justify limiting the emergency response exception to preclude application to a backup responder to a priority two call. The evidence shows that Deputy Baskins was not acting with reckless disregard at the time of the collision. The accident review board’s reprimand does not create an issue of fact regarding recklessness — rather, the board’s conclusion that Deputy Baskins “failed to exercise due care” is evidence only that Deputy Baskins acted negligently in entering the intersection.  As a result, the County’s dispositive motions should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Boyce, Justice Donovan and Justice Wise. Memorandum Opinion by Justice Boyce.  The attorney listed for the County is Patrick Nagorski.  The attorneys listed for Spears are Christina Minshew Lewis and Nichole Marie Nech.

City employee returning to work from lunch deemed not to be in course and scope of employment says 14th Court of Appeals

 

Martin Molina v. City of Pasadena, 14-17-00524-CV (Tex. App. – Houston [14th Dist.], August 21, 2018).

This is a vehicle accident/Texas Tort Claims Act (“TTCA”) case where the 14th District Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City’s inspector for the engineering department, Rendon, was driving a City vehicle on way back from his lunch break. He stopped at the intersection, looked both ways, and saw Molina on the sidewalk twenty feet away. Rendon believed he had time to turn, confirmed there was no on-coming traffic from his left, and took his foot off the brake.  The vehicle traveled approximately one foot before impacting Molina. When Rendon inquired, Molina stated he was fine, left the scene, and proceeded home.  Molina later sued the City. The City filed a plea to the jurisdiction, which the trial court granted. Molina appealed.

It is the general rule that use of public streets or highways in going to or returning from one’s place of employment is not within the scope of one’s employment.  The City admitted that while traveling to a job site, which Rendon was doing, was considered “on duty.”  When the vehicle involved in an accident was owned by the defendant and the driver was an employee of the defendant, however, a presumption arises that the driver was acting within the scope of his employment when the accident occurred. The court went through a burden shifting analysis noting evidence that the employee was on a personal errand to eat at the time of the accident, such as Rendon, refutes an allegation that he was acting in the course and scope of his employment. The burden then shifts to the City to present other evidence that Rendon was in the course and scope of his employment.  An employee who has turned aside, even briefly, for a personal errand is no longer in the scope of employment until he returns to “the path of duty.” However, evidence that Rendon was returning to work from a personal errand at the time of the accident rebutted the presumption that he was acting in the course and scope.  He had not returned to duty and the City’s conclusory statements of “on duty” is not a legal determination.  Because there is no probative evidence that raises a genuine issue of material fact as to whether Rendon was engaged in the City’s business at the time of the accident, there was no dual purpose to Rendon’s personal errand. As a result, the plea was properly granted.

If you would like to read this opinion clicker here. Panel consists of Justice Boyce, Justice Donovan and Justice Wise. Memorandum Opinion by Justice Donovan. The attorneys listed for the City are Brian J. Begle, John J. Hightower, Patricia L. Hayden  and Eric C. Farrar.  The attorney for Molina is listed as Kiernan McAlpine

 

Police officer’s need to reach site of 911 call justified actions of entering intersection in course and manner – immunity therefore preserved

 

Jason Roche v. City of Austin, 03-17-00727-CV (Tex. App. – Austin, August 21, 2018).

This is a vehicle accident/Texas Tort Claims Act (“TTCA”) case were the Austin Court of Appeals affirmed the granting of a dismissal order.

Police Officer Nguyen was responding to a 911 call that a man brandishing a knife was threatening people in the Dollar General Store parking lot. While in route he collided with the pickup truck driven by Roche. As the officer approached an intersection, the traffic light was red, and traffic was stopped in all lanes in his direction. To proceed, the Officer elected to drive over the median dividing the eastbound and westbound lanes. Roche entered the intersection under a yellow light. Although Roche heard the emergency siren before he proceeded into the intersection, he did not see the police car until it was too late. The Officer was later reprimanded for violating department policies on how to respond to such calls.  Roche sued the City.  The City filed a motion for summary judgment asserting immunity, which was granted. Roche appealed.

Under the emergency exception provision of the TTCA, no waiver of immunity exists  if: (1) the employee was responding to an emergency; (2) the employee was acting in compliance with applicable laws and ordinances governing the employee’s response; or (3) in the absence of such a law or ordinance, the employee did not act with conscious indifference or reckless disregard to the public’s safety. The emergency exception provision is designed to balance the public’s safety with the need for prompt response from public-safety personnel. Imposing liability for a simple failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks. Emergency exception provision is intended to prevent judicial second-guessing of split-second and time pressured decisions emergency personnel are forced to make. The court held  “the Officer’s timely presence at the store was crucial to protect the safety, and perhaps lives, of these people. The need to reach the Dollar General premises as quickly as possible was manifest.”  The court analyzed the “laws” and “ordinances” governing the Officer’s response under the Texas Transportation Code.  Section 546.001 allows, among other acts, the operator of an emergency vehicle to “proceed past a red or stop signal or stop sign, after slowing as necessary for safe operations,” and to “disregard a regulation governing the direction of movement or turning in specific directions.”  A police department’s internal policy or procedure is not a “law” or “ordinance” for purposes of waiver of immunity, so the reprimand is irrelevant.  Witnesses stated no other vehicles were in the intersection when the Officer entered it. The Officer was driving “relatively slowly” and slowed down before he entered the intersection, the Officer took his foot off the accelerator before entering the intersection, and Roche entered the intersection at a “relatively fast” pace, without hesitation. After reviewing the submitted evidence the court held the summary-judgment record establishes, as a matter of law, that the Officer complied with the laws applicable to the emergency situation. The judgment was affirmed.

If you would like to read this opinion click here. Panel consists of   Justice Puryear, Justice Pemberton and Justice Shannon. Memorandum Opinion by Justice Shannon. The docket page with attorney information is found here.

In defamation suit 1st District Court of Appeals holds employees responding to city council questions in open meeting were acting within course and scope of employment for § 101.106(f) purposes

Elias v Griffith, et al, 01-17-00333-CV, 2018 WL 3233587 (Tex. App. – Houston [1st  Dist.], July 3, 2018.)

This is a defamation case brought against individual city officials for acts performed within their course and scope of employment.  The First District Court of Appeals held the individuals were entitled to the statutory immunity provided by to § 101.106(f) of the Texas Civil Practice and Remedies Code.

Elias owns a tow truck company.  Elias sued the First Assistant City Manager (Griffith) and the Chief of Police (Brinkley) for defamation, in their individual capacities, for statements made to the City Council during a public meeting. The City implemented new procedures for the selection of five (5) tow truck companies to be placed on its non-consent tow truck rotation list. Brinkley, as Chief of Police, manages the list as well as investigates complaints about companies. Griffith is the assistant city manager responsible for overseeing various departments, including PD. A lottery was held, and Elias was not selected. Elias called multiple officials complaining about the process and other companies. At the next public meeting, the City Manager asked Griffith and Brinkley to make a presentation to City Council. They listed multiple citizen complaints filed against Elias and that Elias was reported to be misleading and deceptive. They addressed how they responded to Elias’ complaints about the system and the other companies who were selected by the lottery. At one point, Griffith stated “…I have never seen a vendor use lies and threats to this degree to gain a personal financial benefit.”  Elias filed suit against Griffith and Brinkley, alleging a cause of action for slander per se.  Griffith and Brinkley filed a motion to dismiss under Tex. Civ. Prac. & Rem. Code Ann. §101.106(f) which requires dismissal of employees acting in their course and scope of employment and substitution of the City, which the trial court granted. Elias appealed arguing he sued Griffith and Brinkley individually and not in their employed capacities.

The appellate court analyzed the history of § 101.106 and its purpose. The court then analyzed “…whether Brinkley and Griffith conclusively proved that their conduct was within the general scope of their employment and whether Elias’s suit could have been brought under the Tort Claims Act against the City.”  Section 101.001(5) of the Tort Claims Act defines “scope of employment” and the court injected Texas Supreme Court precedent.  The Texas Supreme Court emphasized that the scope-of-employment analysis “calls for an objective assessment of whether the employee was doing her job when she committed an alleged tort, not her state of mind when she was doing it.”  Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). Here, Brinkley and Griffith were asked to advise City Council of the conclusions reached following the police department’s investigation of Elias’s complaints. It was within the general scope of Brinkley’s employment, as the administrative head overseeing the program. It is also within Griffith’s general scope of employment, as First Assistant City Manager responsible for overseeing the PD and as one of the individuals involved in the meetings with Elias regarding his complaints, to report on the conclusions into those complaints.  As a result, Brinkley and Griffith conclusively established their statements made during their presentation to City Council, even if defamatory, were within the scope of their employment.

Next, the court held the only cause of action alleged was a tort. As the Texas Supreme Court previously noted, “because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).  The court noted §101.106 has previously been held constitutional. Brinkley and Griffith are therefore statutorily immune.

If you would like to read this opinion click here. Panel consists of Justice Keyes, Justice Brown and Justice Lloyd. Memorandum Opinion by Justice Lloyd.  The attorney listed for Elias is Leland M. Irwin.  The attorneys listed for the City Defendants is Patricia L. Hayden.

Employee failed to establish valid comparators in equal protection/employment discrimination case, so individuals entitled to qualified immunity says 5th Circuit

Mitchell v. Mills No. 17-40737 (5th Cir. July 13, 2018)

This is an equal protection in employment case where the 5th Circuit held the individual defendant mayors were entitled to qualified immunity.

Mills and Chartier were both mayors at different times during Mitchell’s employment by the City. Mitchell is an African-American man in the Public Works Department (“PWD”). Mitchell alleged the defendants paid him less than two comparable white coworkers.  Mitchell’s comparators are Davlin, who is a Street Superintendent and Heard, who was Davlin’s predecessor. Both comparators shared some overlapping duties with Mitchell, but they also had additional duties and skills including experience in operating street-related heavy equipment, including a motor grader. Mills and Chartier moved for summary judgment on the basis of qualified immunity, which the trial court denied. They filed this interlocutory appeal.

Mitchell bears the burden to overcome qualified immunity. Mitchell may not rest on mere allegations or unsubstantiated assertions but must point to specific evidence in the record demonstrating a material fact issue.  In order to establish a violation of the Equal Protection Clause in the employment context, a plaintiff must prove a racially discriminatory purpose or motive.  As part of his prima facie case of wage discrimination, Mitchell “must show that he was a member of a protected class and that he was paid less than a non-member for work requiring substantially the same responsibility.”  His circumstances must be “nearly identical” to those of a better paid employee. Given the undisputed facts, Davlin and Heard are not nearly identical comparators. They worked in the street department and Mitchell in the water department. Streets required specialized skills which were not required for Mitchell’s job. It is undisputed that Mitchell possessed none of these skills and that such skills and responsibilities were not required for his position. In sum, Mitchell failed to carry his burden to overcome the defendants’ claim of qualified immunity. The summary judgment should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices JOLLY, SOUTHWICK, and WILLETT. Opinion by Justice Jolly. Attorney listed for Defendants is Darren Keith Coleman.  The attorney listed for Mitchell is Dorian Vandenberg-Rodes.

City retained ability to revoke non-consent tow permit says U.S. 5th Circuit

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Rountree v. Dyson No. 17-40443 (5thCir. June 11, 2018)

This is a 42 U.S.C. 1983 suit where the City of Beaumont removed a tow-truck company from its non-consent tow rotation list and the 5thCircuit affirmed a dismissal in favor of the City.

Rountree owned a towing company and had been on the non-consent tow rotation list for thirty years. Police Chief James Singletary revoked Rountree’s city-issued towing permit based on a complaint by a competing tow company, which asserted—truthfully—that three of Rountree’s state-issued licenses had lapsed. Rountree did not dispute the lapse, but instead asserted the Chief persuaded the competitor to file the complaint and had targeted Rountree.  The permit is not required for all tows, just non-consent tows requested by PD. Later, Rountree was called by a former customer to help with a tow but Rountree called a permitted tow truck to help the former customer. Sergeant Troy Dyson arrived on the scene and told Rountree to leave. Rountree refused and Dyson arrested him. The charge was later dismissed. Rountree sued the City and Dyson. The trial court dismissed his claims and Rountree appealed.

First, the 5thCircuit held that the trial court was within its discretion to dismiss the case before considering Rountree’s amended pleading. “Defendants should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending.” Rather, “[i]f some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the amended pleading.” Second, class-of-one claims are inapposite “to a local government’s discretionary decision to include or not include a company on a non-consent tow list.” If a city has the discretion to choose from whom it contracts private services, then it must equally retain the discretion to choose when to terminate such relationship. Alternatively, Rountree’s equal-protection claim fails because he did not sufficiently allege that he has been treated differently from others similarly situated.Finally, Rountree was unable to overcome Dyson’s entitlement to qualified immunity. The City had a criminal ordinance requiring all tow truck operations to follow the commands of police at scenes. Since it is undisputed Rountree refused, the arrest was based on such action by Rountree and was within Sgt. Dyson’s discretion. The dismissals were affirmed.

If you would like to read this opinion click here. Panel consists of Justices Smith, Wiener and Willett. Opinion by Justice Smith. The attorney listed for Rountree is Randall Lee Kallinen.  The attorney listed for the City is Frank David Calvert.

U.S. Supreme Court holds officer entitled to qualified immunity after shooting woman walking towards roommate with a large knife

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Kisela v. Hughe, 17-467, 584 U.S. – (April 2, 2018).

This is an excessive force/qualified immunity case where the U.S. Supreme Court reversed the denial of the officer’s qualified immunity.

Tucson police officer Kisela and two other officers had arrived on the scene after hearing a police radio report that a woman was engaging in erratic behavior with a knife. They viewed Hughes (who matched the description given on the radio) holding a large kitchen knife and advancing towards another woman standing nearby. After commanding Hughes to stop and her failing to comply, Kisela shot Hughes. she was treated for non-life-threatening injuries. The other woman, Chadwick, was Hughes’ roommate. Less than a minute had transpired from the moment the officers saw Chadwick to the moment Kisela fired shots. Hughes sued Kisela for excessive force.  Kisela moved for qualified immunity, which the trial court granted, but the 9th Circuit Court of Appeals reversed.

Excessive force is a fact specific analysis. Specificity is especially important as it is sometimes difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation the officer confronts. In this case, Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911. After his commands to stop were not complied with, he defended Chadwick. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. The Court noted that “…not one of the decisions relied on by the Court of Appeals…supports denying Kisela qualified immunity.” The panel’s reliance on such prior opinions the way that it did “does not pass the straight-face test.” As a result, Kisela was entitled to qualified immunity.

Justices Sotomayor and Ginsberg dissented, noting they felt Kisela acted too hastily. He did not observe Hughes commit any crimes and, other than walking, was not acting hostile towards Chadwick. Kisela did not wait for Hughes to register, much less respond to, the officers’ rushed commands. Therefore, they felt the immunity should be denied and to let the facts play out as the facts may not be reasonable.  They noted the Majority did not address reasonableness and simply analyzed whether the law was clearly established.

If you would like to read this opinion click here. Per Curiam Opinion. Justices Sotomayor and Ginsberg dissented.

San Antonio Court of Appeals holds City made a judicial admission employee was acting within course and scope of employment at time of accident by filing §101.106(e) motion to dismiss. Therefore, not entitled to jury question on course and scope

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Victor Ramos v. City of Laredo, 04-17-00099-CV (Tex. App. – San Antonio, March 28, 2018).

This is a Texas Tort Claims Act (“TTCA”) case where the San Antonio Court of Appeals reversed a jury verdict and rendered judgment against the City.

While Ramos, a motorcyclist, was making a left-hand turn into the park he was struck by another motorcycle with flashing lights attempting to exit the park in the wrong lane driven by an individual Ramos asserted was named Guerra. Guerra is a police officer with the City of Laredo. Ramos sued the City and Guerra.  The City claimed that Guerra was on leave on the date of the accident, was not involved in the accident, and was not acting in the course and scope of his employment at the time of the accident. But the City also asserted Guerra must be dismissed under §101.106(e) of the TTCA.   In response to the City’s plea to the jurisdiction and motion to dismiss, Ramos non-suited Guerra with prejudice. Guerra testified he was at home, asleep, at the time of the accident. At trial, over Ramos’ objections, the court submitted a question to the jury on whether Guerra was acting within the course and scope of employment.  The jury returned a verdict Guerra was negligent and liable but was not acting within the course and scope of his employment. Ramos appealed the verdict.

Section 101.106(e) of the TTCA is titled “Election of Remedies” and provides that when a claimant files suit “under this chapter” against both a governmental unit and its employee, the employee shall immediately be dismissed from the suit upon the filing of a motion to dismiss by the governmental unit. By filing a §101.106(e) motion to dismiss, a governmental unit “effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party.” Thus, when the City requested that Guerra be dismissed pursuant to §101.106(e), the City confirmed Ramos’s allegation that Guerra was acting in the scope of employment at the time of the accident and agreed to vicariously defend its employee. Because of the election by the City to be held responsible for its employee in its plea, the court held the City was bound to its judicial admission that Guerra was acting in the scope of employment at the time of the accident.

Justice Barnard wrote separately only to emphasize that the 4th Court prognosticated this type of argument in 2011 and cautioned entities not to shift arguments mid-stream trying to avoid liability. Either the employee is not in the course and scope and no dismissal under §101.106(e) applies, or they are in the course and scope and §101.106(e) requires a dismissal.

If you would like to read this opinion click here. Opinion by Justice Martinez, Judge Barnard’s concurring opinion is here. Panel consists of Justice Angelini, Justice Barnard and Justice Martinez.  The attorney listed for the City is Albert Lopez. The attorney listed for Ramos is Marcel C. Notzon, III.