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Rainey v. City of Alvin9/7/1995
d the suspect outweighed a clear risk of harm to the public in continuing the pursuit." Chambers, 883 S.W.2d at 656. In setting forth this test, the court in Chambers noted it was substantially derived from the test for claims of official immunity under federal law. Id. The federal test requires courts look to "whether a reasonable official could have believed his or her conduct to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred." Id. The "could have believed" aspect of the test means that in order to be entitled to summary judgment, an officer must prove that a reasonably prudent officer would have acted similarly. See Chambers, 883 S.W.2d at 656-57.
Applying Chambers to this case, we conclude that to meet its summary judgement burden, the City was required to show that a reasonably prudent officer could have believed Esquivel's decision to apprehend and arrest Rainey by holding his weapon behind Rainey's head was justified. The affidavit of the City's police chief, Mike Clawson, states that the police chief believed that Esquivel "acted appropriately in approaching the suspect vehicle and Gary Wayne Rainey with his weapon drawn, based on the events that preceded the stop." We note that the law allows a peace office to use force or even deadly force if necessary in appropriate circumstances. TEX. PENAL CODE ANN. Section(s) 9.51 (Vernon 1994); Vasquez, 844 S.W.2d at 805.
The good faith test adopted by the court in Chambers also elevated the standard of proof for a non-movant seeking to defeat a claim of official immunity in response to a motion for summary judgment. Id. at 656. To controvert the officer's summary judgement proof on good faith, the non-movant must do more than show that a reasonably prudent officer could have decided to do otherwise; rather, the non-movant must present evidence that no reasonable officer in that position could have thought the facts were such as to justify the actions in question. Id. at 657.
Wofford's summary judgement evidence did not contain proof that no reasonable officer in Esquivel's position could have thought the facts were such as to justify Esquivel's actions. Instead, Wofford relies on Esquivel's testimony that he was upset that the driver of the pickup truck tried to run him into an 18-wheeler, thus attempting to create a fact issue on Esquivel's good faith. We conclude the summary judgment evidence offered by Wofford does not meet the standard set forth in Chambers required to controvert the summary judgement evidence offered by the City on Esquivel's good faith. Therefore, we hold the summary judgement evidence offered by the City proved the elements of the affirmative defense of official immunity as a matter of law.
Esquivel was entitled to official immunity for his actions. Applying DeWitt, we note that a governmental unit is not liable under section 101.021(2) of the Tort Claims Act for the negligence of its employee when the employee has no liability because of official immunity. Id. at 919. We hold the trial court was correct in granting the City's motion for summary judgement on the grounds of the official immunity of the City's employee.
Because we hold that the district court could have properly granted summary judgement on the grounds of Esquivel's official immunity, we do not address Wofford's remaining three subpoints. We overrule Wofford's sole point of error and affirm the district court's judgment.
Davie L. Wilson, Justice
Justices Cohen and Andell also sitting.
Do not publish. Tex. R. App. P. 90.
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