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City of Houston v. Fagan12/2/1999
0, no writ). A police officer has official immunity for the performance of discretionary duties within the scope of the his authority, provided he acts in good faith. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). Whether or not to pursue a fleeing suspect is clearly a discretionary act within the scope of a police officer's authority. See Chambers, 883 S.W.2d at 655 (holding that "a high speed pursuit involves the officer's discretion on a number of levels; including which route should be followed, at what speed, should back-up be called for, and how closely should the fleeing vehicle be pursued); Harris County v. Garza, 971 S.W.2d 733, 736 (Tex. App.-Houston [14 Dist.] 1998, no writ) (holding that "driving at high speed to the scene of reported violence was a discretionary act" because the officer "had to determine what route to follow, at what speed, and should back-up be called for on the way to the disturbance"); City of Pharr v. Ruiz, 944 S.W.2d 709, 715 (Tex. App.-Corpus Christi 1997, no writ) (holding that, based on an examination of relevant city policies, an officer's decision to initiate a high-speed chase is discretionary). The remaining element in the affirmative defense of official immunity is good faith. In a pursuit context, "an officer acts in good faith if a reasonably prudent officer under the same or similar circumstances could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing (rather than terminating) the pursuit." See Wadewitz, 951 S.W.2d at 466 (citing the "Chambers balancing test" Chambers, 883 S.W.2d at 656).
The City relies on affidavits by Officers Storemski and Tyler to establish good faith. In order to substantiate the officer's contention of good faith, these affidavits must "address what a reasonable officer could have believed under the circumstances, and be substantiated with reference to each aspect of the Chambers balancing test." Clark v. University of Houston, 979 S.W.2d 707, 711 Tex. App.-Houston [14th Dist.] 1998, no pet. h.) (op. on reh'g) (en banc). Officer Storemski's affidavit states: I was dispatched to pursue a stolen vehicle . . . the dispatcher stepped it up to an urgent situation . . . I was heading northbound . . . my overhead lights and siren [were] activated. I was fully in compliance with the Codes and policies of the Houston Police Department at the time of the accident. As I approached the intersection, I slowed the vehicle to ensure that the other vehicles on the street had stopped for me. I came to a complete stop prior to entering the intersection and used the manual horn on the police vehicle, which I blew several times to alert the other drivers of my presence. Once I noticed that the other vehicles on both streets had stopped and yielded the right of way to me, I preceded into the intersection.
I do not believe that my actions were reckless or that I drove without due regard for the safety of others . . . I was fully in compliance with the laws and ordinances applicable to the emergency situation. I believe that I acted in good faith in that a reasonable police officer could have chosen to take the same course of action that I took. I assessed the need to respond to the situation and the risk involved in responding while I was driving.
We first examine the "need" aspect, i.e., the need to immediately apprehend the suspect. In the context of a pursuit of a stolen vehicle, absent any new crimes being committed in the course of the pursuit, the need to pursue a particular suspect will remain constant. This is not to say that every stolen vehicle chase has the same amount of need, on
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