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Day v. State5/11/1999
s only a misdemeanor or an infraction--such as driving ten miles per hour over the speed limit--and the attempt to apprehend the person creates a serious risk of death or injury to third persons or the fugitive. It has been held that, in apprehending someone, a law enforcement officer must act reasonably and may not use all available means to apprehend a fleeing suspect to arrest him for a misdemeanor. Thus, officers may not use lethal force to stop one who has committed a misdemeanor. See Graham v. State, 237 P. 462 (Okla. Crim. App. 1925); Gosczinski v. Carlson, 147 N.W. 1018, 1020 (Wis. 1914) ("Under the rules of the common law, officers were not justified to shoot persons attempting to escape from their custody in case of arrests for a misdemeanor . . . ."). The threat of injury to the safety of the person fleeing and to the safety of bystanders is significant enough, and the magnitude of the possible harm so momentous, to dictate that the fleeing person be allowed to escape rather than imperiling his safety or the safety of others. See Edgin v. Talley, 276 S.W. 591, 594 (Ark. 1925) (officer who fired at misdemeanant's auto, injuring passenger, could be held liable for "negligent and careless" use of firearms); Davis v. Hellwig, 122 A.2d 497 (N.J. 1956) (negligence claim stated where officer fired at fleeing misdemeanant and bullet ricocheted and hit bystander); Moore v. Foster, 180 So. 73, 74 (Miss. 1938) (officers who hit plaintiff when they fired above heads of fleeing misdemeanants to frighten them into stopping, acted "negligently and wrongfully"); see also Shaw v. Lord, 137 P. 885, 886-87 (Okla. 1914) (peace officer's privilege to use firearm in attempt to arrest felony fugitive did not relieve officer of duty to avoid injuring bystander); Askay v. Maloney, 179 P. 899, 903-04 (Or. 1919) (same).
The State also argues that Officer Colyar's pursuit was non-actionable because he was engaged in a discretionary function. For reasons discussed infra, the law that governs is not the law at the time of statehood with respect to whether a cause of action lies against a law enforcement officer for actions taken in trying to apprehend a misdemeanant, as the State argues and the Court of Appeals ruled. Rather, the issue is determined by the standards imposed by section 41-6-14 (1988) and the current general principles governing police conduct. Implicit in the cases discussed above that hold officers liable for carelessly injuring others while engaged in hot pursuit is the proposition that the discretion which an officer uses in such a pursuit is not sufficient to bar such an action.
The general rule with respect to whether police conduct and its endangerment of others is actionable is stated in K.C. Davis & R.J. Pierce, Jr., Administrative Law Treatise 19.3 at 217 (3d ed. 1994): "Although much police work is highly discretionary, the courts over long period have classified police action as ministerial; that means that a [police] officer generally has only qualified immunity, not absolute immunity, even when what he does is clearly discretionary." That proposition is implicitly and firmly established in Utah law. See Cornwall v. Larsen, 571 P.2d 925, 927 (Utah 1977); Benally v. Robinson, 14 Utah 2d 6, 376 P.2d 388 (1962); Jackson v. Harries, 65 Utah 282, 236 P. 234 (1925); Geros v. Harries, 65 Utah 227, 236 P. 220 (1925); see also Payne v. Myers, 743 P.2d 186 (Utah 1987); Frank v. State, 613 P.2d 517 (Utah 1980).
Indeed, older cases say little or nothing about the official immunity of police officers, but they clearly support holding police officers liable for their negligent acts, particularly when attempting arrests. See, e.g., Restatement (Second) of Torts ยง 895D (1979); Anno
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