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Shapiro & Appleton

Virginia Supreme Court Greatly Expands Immunity From Civil Liability for Police

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An October 31, 2014, decision by the Virginia Supreme Court has the potential to make it nearly impossible for members of the public to hold police officers in the state liable in civil court for injuries or deaths the law enforcement officers inflict while on duty. The 6-1 ruling came in a case titled McBride v. Bennett, and a lengthy analysis of its importance appeared in the Richmond Times-Dispatch in late November. I urge everyone interested in issues of police accountability and sovereign immunity to review both the published decision and the article by Bill McKelway.

 

 

The wrongful death lawsuit reached Virginia's highest court after a circuit court ruled that the family of a man run over by police who pled guilty to driving recklessly while responding to a nonemergecy call could not seek compensation because the city employees were using their discretion while performing their official duties. The fatal accident that prompted the legal proceedings occurred on Brambleton Avenue at around 1 am on July 25, 2010. The officers, traveling side-by-side in separate vehicles, reached speeds of 80 mph on roads where the maximum speed limit is just 35. They did not turn on their rooftop lights or sound their sirens. Dispatch records show that each man had been informed that the domestic disturbance to which they were responding was not a life-threatening situation.

Prosecutors indicted one of the police officers for manslaughter, and each officer faced felony reckless driving charges. Plea agreements reduced the men's convictions to single counts of lower-lever reckless driving. The estate of the deceased victim filed the original civil lawsuit with a request for $33 million in compensatory and punitive damages.

In writing that the police officers' sovereign immunity prevented the dead man's family from seeking or receiving compensation, the majority of the state justices found, according to McKelway: "An officer 'must make prompt, original and crucial decisions in a highly stressful situation' and that 'no policy can account for every situation a police officer may face.' Even though department policy dictated that the response to the domestic call not involve an emergency response, the ultimate decision on how to respond allows for the officers’ 'exercise of judgment and discretion' and therefore 'allows for the invocation of sovereign immunity.'"

The justices' ruling that city employees have almost completely unbounded latitude in determining how to carry out their duties hews close to findings for the defendant in a case such as a Norfolk police academy fight trainer either inflicting or exacerbating a recruit's ultimately fatal traumatic brain injury. The McBride decision also calls to mind the time that the commonwealth's attorney for Virginia Beach refused to pursue criminal charges against a city garbage truck driver who violated safety procedures in the course of running over and killing a homeless man lying on the sand at the Oceanfront.

The sole dissenting justice in McBride wrote that no city or state employee can be granted unlimited discrimination, arguing that doing so fails to protect the people such employees are supposed to serve and makes regulations, work rules and safety guidelines meaningless.

The plaintiffs in this case have requested a rehearing by the Supreme Court. As a personal injury and wrongful death attorney whose firm has also found holding public servants liable difficult. I hope they succeed in getting the justices to revisit and undo what could stand as a very bad precedent for anyone harmed by government workers.

EJL

Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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