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Loftin v. Morales12/14/2005
w that no reasonable person in the officer's position could have thought that the facts justified the officer's acts. Id. The court must consider the rights of bystanders or other innocent parties if an officer acts in gross disregard of public safety. Chambers, 883 S.W.2d at 656.
The Record
None of the parties question whether both officers were performing discretionary duties and all seem to agree they were acting within the scope of their employment. Therefore, our review shall focus on the good faith element of immunity.
Evidence in Support of Appellants' Motion
Appellants submitted affidavits of Loftin, Evans, and Sergeant Don Worthington, a DPS accident investigator, and excerpts from Loftin's deposition testimony. We first survey this evidence and identify that which addresses the need to pursue the Ford Probe and immediately apprehend its occupants.
In his January 5, 2005 affidavit, Loftin stated that the Probe was going seventy-four miles per hour in a fifty-five mile per hour zone. Loftin observed that the back left window was broken leading him to believe the car might be stolen. Although the driver turned and looked directly at the troopers, he accelerated and ran a stop sign instead of stopping for the officers. The Probe traveled on several different roads, including roads going through a golf course, at a high rate of speed. The Probe entered Shadybrook, a rural residential community, continuing to disregard stop signs and drive recklessly. The Probe drove through the yard of a private residence causing Loftin to believe the suspects might attempt to exit their vehicle, dispose of contraband, or endanger residents of the subdivision. Loftin explained that, due to the Probe's dangerous and reckless manner of operation, including disregard of stop signs and trespassing, and the suspect's evasion of arrest, he believed that the suspect vehicle posed an immediate danger to the public and needed to be apprehended. He explained that the violations of law that he observed "threatened the safety of the many people who were in or potentially in the area and/or on the roads."
In his January 5, 2005 affidavit, Evans stated that the Probe was speeding and they pursued the Probe when it failed to stop. He explained that during the pursuit, he saw two or three small, brown, square objects come out of the passenger window. He thought those were probably controlled substances or other contraband. During the pursuit, the driver of the Probe drove in a reckless manner, committing many traffic violations that "threatened the safety of the many people who were in or potentially in the area and/or on the roads." Evans described the driver of the Probe as an "immediate danger to the public." Evans believed that the suspect's reckless operation of his vehicle and the suspected criminal conduct necessitated an immediate stop to avert any threat of harm to persons in or near the area or the roadway.
Next, we identify the evidence regarding the risk to the public posed by the high-speed chase. Loftin described Shadybrook as a "sparsely populated rural community"and stated that "there were several stretches where there were no homes at all." Loftin said there was almost no traffic, very few homes, and few visible pedestrians. He saw one man standing beside the roadway inside Shadybrook and never saw any pets or children. He saw the driver of a utility truck pull over to the right and get out of his truck. Loftin described the roads in Shadybrook as rough. He said they made numerous right and left turns and he never achieved a high rate of speed in the subdivision. He felt that any risk to the public significantly diminished inside Shadybro
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