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Clement v. City Of Plano8/24/2000
or good faith that is required to establish official immunity.
Whether a police officer acted in good faith must be measured against an objective standard of reasonableness, without regard to his subjective state of mind. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) (citing Chambers, 883 S.W.2d at 656). Whether the officer was negligent is immaterial in determining good faith. See Chambers, 883 S.W.2d at 656. Under Chambers, good faith depends on how a reasonably prudent officer could have assessed both the need to which an officer responds and the risks of the officer's course of action, based on the officer's perception of the facts at the time of the event. See Wadewitz, 951 S.W.2d at 467 (citing Chambers, 883 S.W.2d at 656). The "need" aspect of the test refers to the urgency of the circumstances requiring police intervention. The "risk" aspect of good faith refers to the countervailing public safety concerns and is determined by the nature and severity of harm that the officer's actions could cause, the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer. See Clark, 43 Tex. Sup. Ct. J. at 876, 2000 WL 768541, at *3 (citing Wadewitz, 951 S.W.2d at 467).
Conclusory statements by an expert are insufficient to support summary judgment. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam) (op. on reh'g). Expert testimony on good faith must address what a reasonable officer could have believed under the circumstances and must be substantiated with facts showing the officer assessed both the need to apprehend the suspect and the risk of harm to the public. See Clark, 43 Tex. Sup. Ct. J. at 876, 2000 WL 768541, at *3 (citing Wadewitz, 951 S.W.2d at 467). " onclusory statements that a reasonable officer could or could not have taken some action will neither establish good faith on summary judgment nor raise a fact issue to defeat summary judgment." Clark, 43 Tex. Sup. Ct. J. at 876, 2000 WL 768541, at *3; see State v. McGeorge, 925 S.W.2d 105, 109 (Tex. App._Houston [14th Dist.] 1996, writ denied).
In his affidavit, Glasscock stated his law enforcement experience and that he was "familiar with standard operating procedures for the Plano Police Department and ha 28 years experience and training as a police officer dealing with confrontations which threaten a serious bodily injury ." Further, Glasscock stated that he reviewed Nunns's deposition and the petition, and
It is my opinion that a reasonable police officer in Michael Nunns' position . . . could have reasonably believed that deadly force was necessary out of self defense in connection with the incident that occurred with Michael Clement. It is further my opinion that Officer Nunns complied with all policies, procedures, and regulations of the Plano Police Department at all times during the incident in question. It is my opinion that all of the actions of Officer Nunns, taken in connection with the incident in question, were undertaken in good faith.While Glasscock's affidavit assesses Nunns's need to defend himself from Michael, it does not assess the risk to Michael of Nunns's action. Glasscock's affidavit does not state facts showing, in these circumstances, the nature and severity of the harm Nunns's actions could cause, the likelihood any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer. See Clark, 43 Tex. Sup. Ct. J. at 877, 2000 WL 768541, at *6; Wadewitz, 951 S.W.2d at 467. Glasscock's affidavit states legal conclusions rather than facts on the issue of good faith and does not support summary judgment as a matter of law. See Clark, 43 Tex. Sup. Ct. J. at 879-80, 2000 WL 768541,
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