Defenses: Police officer not entitled to qualified official immunity for injuries caused when car being chased crashed and killed passenger (Mattingly vs. Mitchell,

Police vehicle LouisvilleCourt of Appeals affirmed trial court and held that the police chase in this case did not entitle the police officer driver immunity from civil liability as a result of the collision that killed a passenger in the other car and injured another driver. Police office did NOT follow departmental guidelines for commencing and ending the chase.

Decision is pending motion for discretionary review filed by Appellant on 7/18/2013.


Mattingly vs. Mitchell
COA PUB 6/21/2013
Jefferson County
NO. 2012-CA-000083-MR
Affirmed COA decision denying police officer qualified official immunity.

THOMPSON, JUDGE: William Mattingly filed this interlocutory appeal from an order of the Jefferson Circuit Court determining that he was not entitled to qualified official immunity and that a question of fact remained regarding whether Mattingly’s actions were the proximate cause of an accident in which Latonia Mitchell was killed. Daisy Mitchell, as Administrator of the Estate of Latonia Mitchell, (the Estate) cross-appealed from that portion of the court’s order granting summary judgment in favor of Mattingly in his official capacity as a Louisville Metro Police Department Officer and on the Estate’s 42 U.S.C. § 1983 claim. We affirm the circuit court’s determination that Mattingly is not entitled to qualified official immunity in his individual capacity. Because the remaining portions of the circuit court’s order are not subject to immediate appeal, we do not address those issues.

Whatever discretion Mattingly may have had in initiating and continuing a pursuit, it was limited by the Louisville Metro Police Department’s Standard Operating Procedures. As set forth earlier in this opinion, those procedures provide specific directives to its officers when initiating or engaging in a pursuit. The repeated use of the term “shall” establishes that compliance with its provisions involve “merely execution [or nonperformance] of a specific act arising from fixed and designated facts.” Yanero, 65 S.W.3d at 522. Mattingly’s pursuit of the BMW constituted an “identifiable deviation from an absolute, certain, and imperative” order. Haney, 311 S.W.3d at 245 (internal quotations omitted). He either violated the procedures or he did not. Under the undisputed facts that Mattingly violated the procedures, the circuit court properly ruled that Mattingly is not entitled to qualified official immunity.

QUALIFIED OFFICIAL IMMUNITY SUMMARIZED FROM OPINION AS FOLLOWS:

“The immunity that an agency enjoys is extended to the official acts of its officers and employees. However, when such officers or employees are sued for negligent acts in their individual capacities, they have qualified official immunity.” Autry v. Western Kentucky University, 219 S.W.3d 713, 717 (Ky. 2007). Under the qualified immunity doctrine, public officers and employees are shielded from liability for the negligent performance of discretionary acts in good faith and within the scope of their authority. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). The distinction between a discretionary act and a ministerial act is pivotal to the immunity determination. A discretionary act involves the exercise of discretion and judgment or personal deliberation. Id. A ministerial act is one that is “absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Id. The Yanero Court elaborated: “An act is not necessarily ‘discretionary’ just because the officer performing it has some discretion with respect to the means or method to be employed.” Id. Quoting Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959), the Court emphasized “[t]hat a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature.” Id. Because few acts are purely discretionary or purely ministerial, the courts must look for the “dominant nature of the act.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).

 

The circuit court ruled that safely driving a police vehicle in a pursuit is a ministerial function and denied Mattingly qualified official immunity. It relied heavily on Jones v. Lathram, 150 S.W.3d 50 (Ky. 2004), where the Kentucky Supreme Court held that “the act of safely driving a police cruiser, even in an emergency, is not an act that typically requires any deliberation or the exercise of judgment. Rather, driving a police cruiser requires reactive decisions based on duty, training, and overall consideration of public safety.” Id. at 53. Consequently, safely driving a police cruiser in responding to an emergency call from a fellow officer was a ministerial act and, therefore, the officer was not entitled to qualified official immunity. Id. We agree with Mattingly that Jones is distinguishable. In Jones, the police officer drove a police vehicle in response to a call for assistance from another officer and was not in pursuit of a suspect when he hit another vehicle. In contrast, Mattingly was in pursuit of a suspect and did not collide with Cowan’s vehicle. The issue is not how Mattingly operated the police vehicle during the pursuit, but whether he should have initiated the pursuit or terminated the pursuit earlier. However, we cannot agree that Mattingly’s actions can be properly characterized as discretionary. Mattingly relies on Walker v. Davis, 643 F.Supp. 2d 921, 932 (W.D. Ky. 2009), where the Federal Court commented that an officer’s decision to initiate or continue a pursuit of a suspect is discretionary. However, this was not the Federal Court’s holding. Ultimately, it held that the case was controlled by Jones and the officer was not entitled to immunity. Id. at 932-33. It is unnecessary for this Court to decide whether the Federal Court’s statement regarding the discretionary nature of a police officer’s pursuit of a suspect is a correct interpretation of Kentucky law. The Louisville Metro Police Department’s Standard Operating Procedures contain specific directives when an officer initiates or continues a suspect’s pursuit.

 

Whatever discretion Mattingly may have had in initiating and continuing a pursuit, it was limited by the Louisville Metro Police Department’s Standard Operating Procedures. As set forth earlier in this opinion, those procedures provide specific directives to its officers when initiating or engaging in a pursuit. The repeated use of the term “shall” establishes

-10-that compliance with its provisions involve “merely execution [or nonperformance] of a specific act arising from fixed and designated facts.” Yanero, 65 S.W.3d at

522. Mattingly’s pursuit of the BMW constituted an “identifiable deviation from an absolute, certain, and imperative” order. Haney, 311 S.W.3d at 245 (internal quotations omitted). He either violated the procedures or he did not. Under the undisputed facts that Mattingly violated the procedures, the circuit court properly ruled that Mattingly is not entitled to qualified official immunity

 

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