Can the Police Be Negligent if They Run Over a Suspect after a Car Chase on Purpose?
The wife of an accident victim and their minor child appealed from the State Court of Muscogee County’s grant of summary judgment to the Columbus Police Department and a specific police officer (the “defendant police officer”) in a wrongful death and negligence action arising from a high-speed police pursuit and exercise of deadly force.
Background
A high-speed pursuit ensued involving multiple officers and their patrol vehicles. During the chase, the deceased’s vehicle reached speeds of 70 miles per hour, drove on the wrong side of the street, and ran a stop sign. With the defendant police officer in pursuit, the deceased crossed the centerline into oncoming traffic, and headed straight toward a police vehicle traveling from the opposite direction.
After crashing into a cruiser, the deceased climbed out of the car window. The defendant police officer saw a black object in his hand that he thought was a gun. The defendant police officer later said he didn’t think the deceased intended to surrender because he quickly exited his vehicle and didn’t raise his hands.
The deceased had an outstanding warrant for murder.
Next, the defendant police officer struck the deceased with his cruiser, which pulled him under his vehicle and then collided with the deceased’s vehicle. Officers got the cruiser off the deceased, but emergency responders pronounced him dead at the scene. Later, the Office of Professional Standards (“OPS”) cleared the defendant police officer of any wrongdoing.
The plaintiffs filed a complaint alleging the defendants violated the deceased’s civil rights and raised claims for negligence, gross negligence, negligence per se and wrongful death. The defendants moved to dismiss the action based on sovereign immunity. In response, the plaintiffs argued Columbus waived its sovereign immunity pursuant to O.C.G.A. § 36-92-2(a) because the deceased’s death resulted from the officer’s negligent use of his police cruiser as a “covered motor vehicle.”
The trial court granted summary judgment, finding that the doctrine of qualified immunity barred the plaintiffs’ claims against the defendant police officer in his individual capacity. Specifically, the trial judge said:
It is clear from the facts, including graphic audio files, that the defendant police officer’s act in deliberately striking [the deceased] was willful. The officer intended to use deadly force to neutralize what he perceived as an existential threat to himself and others. … The evidence is clear that the officer had reason to believe the deceased posed an immediate threat of violence to the officer and to others. There is no evidence that the officer acted for any reason other than to neutralize the reasonably perceived threat posed by the deceased.
As to the plaintiffs’ claims against the defendants in their official capacities, the court found that the plaintiffs failed to show that Columbus waived its sovereign immunity via the application of O.C.G.A. § 36-92-2(a).
The Plaintiffs Appeal
On appeal, the plaintiffs alleged that the trial court erred by finding the defendant police officer acted with legal justification in intentionally driving into the deceased because he admitted he acted to stop the deceased from fleeing. But the Court of Appeals found that the plaintiffs’ claims against the defendant police officer in his individual capacity were barred by official immunity.
Judge Elizabeth Dallas Gobeil explained that official immunity — also called qualified immunity — provides limited protection to public officers and employees from suit in their personal capacity. The Georgia Constitution provides that government officials may not be held personally liable for performing discretionary acts unless they act “with actual malice or with actual intent to cause injury in the performance of their official functions.” In this context, the Georgia Supreme Court has held that “actual malice requires a deliberate intention to do wrong,” and an “actual intent to cause injury has been defined as an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive.” Significantly, in evaluating official immunity, the Court has held that intentional acts done with legal justification — such as in self-defense — don’t amount to tortious acts.
Here, the trial court found that the defendant police officer’s act in deliberately striking the deceased was willful. Specifically, the court noted that the defendant police officer intended to use his car to “neutralize” the perceived threat posed by the deceased as the officer had reason to believe that the deceased posed an immediate threat of violence to the officers on the scene and other members of the public. The plaintiffs countered that there was a disputed question of fact as to whether the officer acted in justifiable defense of himself or others, or merely was acting to prevent someone from fleeing. However, the trial judge found that the deceased pointed a gun at an officer; had an outstanding warrant for murder; led officers on a high-speed chase that resulted in his vehicle crashing into a police cruiser at approximately 70 miles per hour; refused to surrender after the crash; and brandished what appeared to be a gun after he got out of his vehicle.
The plaintiffs maintained that there was a factual dispute as to whether the deceased intentionally rammed the officer during the high-speed chase. However, even assuming that the deceased was not intentionally targeting the officer, there was no evidence contradicting the officer’s first-hand account (corroborated by dash cam videos of the incident) that the deceased was driving at a high rate of speed into oncoming traffic in the midst of a high-speed pursuit. The plaintiffs also asserted that there was an issue of fact as to whether the deceased was armed at the time of his death. Again, the evidence showed that he pointed a gun at an officer before the high-speed chase, and the defendant police officer saw him exit his car holding an object that the officer believed to be a gun. Moreover, a gun with the deceased’s fingerprints and matching the description of the weapon that the deceased pointed at the officer before the chase was found at the scene next to his vehicle. Importantly, the plaintiffs pointed to no evidence that the deceased was unarmed, that the defendant police officer didn’t have a reasonable belief that deadly force was necessary, or that a gun was “planted” beside the deceased’s vehicle.
Given the totality of the circumstances, the Court of Appeals held that an objective officer in the defendant police officer’s situation reasonably could have believed that the deceased posed a threat of serious physical injury to civilian motorists and to the officers themselves. The defendant police officer’s decision to eliminate the threat of danger to bystanders and officers by striking the deceased with his vehicle was therefore objectively reasonable. Moreover, the plaintiffs failed to put forth any evidence that the defendant police officer acted with malice or an actual intent to cause injury.
Accordingly, the Court of Appeals affirmed the state court’s grant of the motion on the claims against the police officer’s individual capacity as he was entitled to qualified immunity.
Did the Officer Waive His Sovereign Immunity?
The plaintiffs also argued that the state court erred in finding that the officer’s use of his cruiser to “kill” the deceased wasn’t a use of a “covered motor vehicle” as outlined in O.C.G.A. § 36-92-2(a), and hence holding that Columbus didn’t waive its sovereign immunity.
The judge explained that in Georgia, sovereign immunity is an immunity from suit, rather than a mere defense to liability. Whether a governmental defendant has waived its sovereign immunity is a threshold issue. Sovereign immunity extends to counties and can only be waived by a legislative act of the General Assembly specifically providing for the waiver and its extent.
O.C.G.A. § 33-24-51(b) provides a waiver of county sovereign immunity “for a loss arising out of claims for the negligent use of a covered motor vehicle,” up to the limits of insurance coverage purchased by the county or the minimum monetary limits required by O.C.G.A. § 36-92-2. Section 36-92-2(a)(3) in turn provides:
The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to … $500,000.00 because of bodily injury or death of any one person in any one occurrence, … for incidents occurring on or after January 1, 2008.
Judge Gobeil examined the plaintiffs’ assertion that there was a “causal connection” between the defendant police officer’s use of his police cruiser as a vehicle and the deceased’s death. The Georgia Supreme Court recently clarified that “the ‘use’ of a motor vehicle as provided in O.C.G.A. §§ 33-24-51(b) and 36-92-2 isn’t limited by the terms ‘actively in use’ ‘as a vehicle.’ ” In so doing, the Court overruled the Court of Appeals’ precedent construing “use” of a motor vehicle in §§ 33-24-51(b) and 36-92-2(a) as being limited to the “active” use of the motor vehicle “as a vehicle.”
In this case, there was no dispute that the officer “used” his vehicle to hit the deceased, which he claimed he did to neutralize the threat that the deceased posed to the officer, other officers, and the public at large. However, this conclusion doesn’t end the inquiry, the judge said. O.C.G.A. § 36-92-2(a) also requires a showing of “the negligent use of a covered motor vehicle,” in order to provide for a waiver of county sovereign immunity. Neither § 33-24-51(b) nor § 36-92-2 defines the word “negligent,” and the word isn’t defined elsewhere in Chapter 92 of Title 36. Thus, the judge note that the Oxford English Dictionary defines “negligent” as “inattentive to what ought to be done; failing to take proper, necessary, or reasonable care,” and “characterized by or displaying … carelessness.”
Here, the record contained explicit testimony that the officer made a deliberate decision to use his vehicle to strike the deceased. Specifically, the officer admitted he “made the … conscious decision to go ahead to stop the deceased and struck him with his patrol vehicle” to protect the general public. Importantly, the plaintiffs failed to cite to any authority that expanded the interpretation of the phrase “negligent use of a covered motor vehicle” to apply to cases such as this one where an officer makes a conscious, explicit, and documented decision to use his patrol vehicle in an intentional manner to neutralize a perceived threat to himself and others. The judgment was affirmed. Upshaw v. Columbus Consolidated Gov’t, 369 Ga. App. 524 (Ga. App. October 19, 2023).
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