Tuesday, November 26, 2013

Is a Police Officer's immunity in effect when a police dog attacks an officer?

Appellate Lawyer of the Week: K-9 Controversy

| Texas Lawyer | March 5, 2012

Edward Allen, a Houston associate with Wilhite & Lea
Edward Allen, a Houston associate with Wilhite & Lea

Police officers and the cities that employ them long have had governmental immunity from suits in Texas, because an officer's job often involves life-or-death emergencies. But is that immunity in effect when a police dog attacks an officer?

In City of Houston v. David Jenkins, Houston's 14th Court of Appeals says no to that question, thanks to the persuasive argument of Edward Allen, a Houston associate with Wilhite & Lea who represents Jenkins, the plaintiff.

The allegations in the case, according to the 14th Court's opinion, are as follows: On May 4, 2007, Deputy David Jenkins of the Montgomery County Sheriff's Department was dispatched to pursue suspects who allegedly had assaulted another sheriff's deputy. Houston police officer David Thomas — part of a K-9 unit that included a dog trained for law enforcement work — also was sent to search for the suspects.

It was dark when Jenkins and Thomas arrived at a wooded area. Thomas gave Rudy, a Houston Police Department Belgian Malinios, commands to track the suspects. The search later was called off because other officers apprehended the suspects.

After the search was over, Thomas and Rudy began walking back to his vehicle. Thomas stopped to greet another officer when Rudy, who was on a 15-foot leash, attacked Jenkins as he walked by. According to Jenkins, he received about 16 stitches in his leg and sustained lasting nerve damage.

Jenkins sued Thomas and the city of Houston alleging negligence; Thomas was subsequently dismissed from the suit. Jenkins argued in his petition that the Texas Legislature waived governmental immunity for claims involving the negligent use of tangible personal property under the Texas Tort Claims Act. He also argued that official immunity did not bar his claims, because Thomas was performing a ministerial rather than a discretionary act when Thomas walked Rudy back to his vehicle.

The city filed a plea to the jurisdiction, arguing election of remedies under Texas Civil Practice & Remedies Code §101.106: that the claims against the city should be barred because Jenkins sued the city and Thomas.

The city also filed a summary judgment motion, arguing that governmental immunity barred the claims against it.

Jenkins moved for partial summary judgment, arguing governmental immunity did not apply to the city.

The trial court denied the city's plea to the jurisdiction but granted its motion for summary judgment. The trial court did not rule on Jenkins' motion.

Both sides appealed the trial court's decisions on the city's motions.

The 14th Court affirmed the trial court's denial of the city's plea to the jurisdiction. But the appeals court reversed the trial court's decision to grant the city's motion for summary judgment and remanded the case. In the opinion, written by Justice Tracy Christopher, the court looked at whether Thomas was performing a ministerial or a discretionary act while handling Rudy. A discretionary act gives the city immunity, but a ministerial act does not, Christopher wrote.

The 14th Court compared the use of Rudy to the use of a police car. Sometimes, immunity does not attach simply because the misused car is a "police" car. For example, when a police officer gets in an accident en route to an emergency, that is a discretionary act. But when the officer's accident occurs en route to a non-emergency, that is a ministerial act and the "conduct remains subject to the same rules that govern the conduct of private citizens driving privately-owned cars."

"An officer can exercise discretion in deciding when and how to use a potentially dangerous tool, and still have a ministerial duty in using the tool in other circumstances . . .," wrote Christopher. "On this record, Thomas identified no governmental concerns that played a role in the decision not to securely restrain Rudy while transporting him away from the search site."

"We needed to focus on whether this was an emergency situation or a non-emergency situation. And I think that is what really resonated with the court of appeals," Allen says.

Judith Ramsey, a senior assistant city attorney who represents Houston, disagrees with the decision and plans to ask the 14th Court for an en banc rehearing.

"We believe it is discretionary, because the dog was still in use in a situation in a field where a suspect had been apprehended. We believe the situation had not been completed, I guess is one way to put it," she says. "And that a police dog cannot be legitimately compared to a police car — at least in the way the court of appeals did so."


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