Opinion
No. 04-05-00707-CV
Delivered and Filed: June 7, 2006.
Appeal from the 45th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-14125, Honorable Andy Mireles, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Beatriz Vasquez filed suit against the City of San Antonio after an officer of the San Antonio Police Department wounded Vasquez during the course of shooting at Vasquez's dog. The trial court granted summary judgment in favor of the City of San Antonio based on governmental immunity. In her sole issue, Vasquez maintains the trial court erred in granting summary judgment in favor of the City of San Antonio. We affirm.
Background
San Antonio Police Officer Steve Christian went to the residence of Beatriz Vasquez on October 20, 1999 to resolve a boundary dispute between Vasquez and one of her neighbors. Upon arriving at Vasquez's residence, Officer Christian learned Vasquez had pit bull dogs in her yard. Officer Christian instructed Vasquez to put the dogs inside her residence so that he could enter her yard to inspect her property line. Vasquez acknowledged Officer Christian's request and had her son put the dogs inside her house. Once the dogs were secured, Officer Christian entered Vasquez's yard through a gate located on the side of her house.
Officer Christian proceeded into Vasquez's yard and began inspecting the property line with Vasquez. A short while later, however, one of Vasquez's dogs escaped from her residence and ran toward the area where Officer Christian and Vasquez were located. Believing the dog was coming at him, Officer Christian immediately began to retreat toward Vasquez's gate. As the officer retreated, he became concerned that he might slip and fall on the muddy ground before he could escape Vasquez's yard. Officer Christian drew his firearm for protection and fired one shot in the general direction of Vasquez's dog. Neither Vasquez nor her dog was injured by Officer Christian's shot. Vasquez's dog nevertheless continued to charge at Officer Christian.
Vasquez attempted to grab her dog's tail as the dog ran past her toward Officer Christian, but she was unsuccessful in stopping the dog. Realizing the dog was within several feet of him, Officer Christian determined it was necessary to fire more shots at the dog. Officer Christian fired a three-shot series at the charging dog once he determined Vasquez was outside of his line of fire. The dog immediately stopped charging and began retreating after it was hit by fragments from a concrete stepping stone that Officer Christian had struck with his final shot. Although Officer Christian escaped from the incident unharmed, Vasquez was wounded during the incident. Vasquez received minor injuries to her left calf from one of the last three rounds fired by Officer Christian.
Officer Christian indicated that he fired his weapon at a downward angle to minimize the risk of injury to Vasquez.
It is undisputed that Vasquez was wounded as a result of one of Officer Christian's last three rounds. Vasquez's deposition provides: "I remember seeing the tail and thinking I have to grab the tail. As I was thinking that I started screaming, "no, no, no, no, no"; and then I heard three bullets go baa, baa, baa; and I remember grabbing for her tail and then the impact where I was thrown to this brick fireplace . . . I fell between the fireplace and the air conditioner . . . I know he shot three bullets. One of them struck my leg. My left leg."
Vasquez subsequently sued the City of San Antonio (the "City") for her injuries.
Vasquez also sued Officer Christian and the City of San Antonio Police Department for her injuries. The record indicates Vasquez later abandoned her claims against the officer and the SAPD.
The City responded by filing a combined plea to the jurisdiction and alternative motion for summary judgment, asserting it was entitled to governmental immunity. The City claimed that because official immunity protected Officer Christian from liability for his actions, the City is immune from liability as well. The trial court denied the City's plea to the jurisdiction, but granted its motion for summary judgment. Vasquez appeals, claiming the trial court erroneously granted summary judgment in the City's favor.
Standard of Review
The movant for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant is taken as true and the court must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Id. at 548-49. A defendant, as movant, is entitled to summary judgment if it either disproves at least one essential element of each of the plaintiff's causes of action or establishes all the elements of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). We review a trial court's decision to grant a summary judgment de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Immunity
A police officer is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of his authority; (3) provided he acts in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). If the police officer is immune from tort liability under the doctrine of official immunity, the city is also immune. DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). The parties do not dispute that Officer Christian was performing a discretionary duty within the scope of his authority in this case. Thus, our discussion is limited to whether the City established that Officer Christian acted in good faith.
We note that Vasquez maintains the City cannot claim governmental immunity protection based on Officer Christian's official immunity in this case because the officer is not a party to the lawsuit. The record indicates Vasquez originally filed suit against Officer Christian, who asserted the affirmative defense of official immunity in response to Vasquez's petition. The record also indicates that Vasquez abandoned her claim against Officer Christian after he asserted his official immunity defense. Vasquez cites no authority, and we are aware of none, holding a City is precluded from raising its employee's defense of official immunity simply because the employee is not sued with the governmental entity. Consequently, we reject Vasquez's contention.
Good faith requires a court to look to whether a reasonably prudent officer, under the same or similar circumstances, could have believed his conduct was justified based on the information he possessed at the time. Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002); Wethington v. Mann, 172 S.W.3d 146, 151 (Tex.App. Beaumont 2005, no pet.). The City need not prove that it would have been unreasonable not to engage in the conduct or that all reasonably prudent officers would have engaged in the same conduct. Telthorster, 92 S.W.3d at 465; Wethington, 172 S.W.3d at 151. Rather, the City must prove only that a reasonably prudent officer might have reached the same decision under similar circumstances. Telthorster, 92 S.W.3d at 465; Wethington, 172 S.W.3d at 151.
If the City meets this initial burden on the issue of good faith, Vasquez, to controvert, must do more than show that a reasonably prudent officer could have reached a different decision. Telthorster, 92 S.W.3d at 465. Instead, Vasquez must show that no reasonable officer in Officer Christian's position could have thought the facts were such that they justified the officer's acts. Id. "`[I]f officers of reasonable competence could disagree on this issue,' the officer acted in good faith as a matter of law." Id. An officer's good faith is not rebutted by evidence that he violated the law or department policy in making his response. Johnson v. Campbell, 142 S.W.3d 592, 596 (Tex.App. Texarkana 2004, pet. denied). "Nor does recklessness in the performance of the officer's duty belie his good faith" since "[r]ecklessness is negligence, and negligence is immaterial when determining if an officer acted in good faith." Id.
To prove Officer Christian acted in good faith, the City relies on Christian's affidavit and the affidavit of Albert Rodriguez, the Commander of the Training Academy for the Texas Department of Public Safety. In his affidavit, Officer Christian testified that his police experience has made him familiar with pit bull dogs. He avers he is aware that pit bull dogs are strong, agile, aggressive, and very dangerous. Officer Christian further states pit bull dogs have one of the strongest bite-grips of all dogs and do not release their grip once they bite.
Officer Christian stated he was in a confined area and unable to take cover when Vasquez's dog charged him. He feared the pit bull was going to seriously injure or kill him. Officer Christian stated he first attempted to retreat toward the yard entrance when the dog came at him, but the yard conditions were muddy and he was afraid he was going to slip and fall as the pit bull charged. Officer Christian noted that the dog continued to come at him as he moved toward the gate and that he thought Vasquez was going to grab her dog. Vasquez, however, did not grab the dog, which had its head up and was acting as though it was getting ready to bite Officer Christian. Officer Christian stated he did not have time to reach the gate at that point and that his pistol was his only means of protection against the charging dog. He indicated that he had no time to take any other course of action except for firing at the dog, which was within several feet of the officer.
Vasquez's deposition testimony confirms that the dog was charging Officer Christian at the time the officer fired the round that wounded her.
Officer Christian stated he surveyed his surroundings before he discharged his weapon. The officer observed that Vasquez was outside of his line of fire, as she was standing off to his right at about a 45-degree angle to him. Officer Christian concluded that Vasquez, although in close proximity to him, would not get hurt if he fired his weapon because he was not firing at her or in her direction. He further stated he fired his weapon at a downward angle when he decided to fire at the dog.
The officer's affidavit indicated the events in Vasquez's yard transpired very quickly. The officer estimated about three seconds elapsed from the time he saw the dog until he fired his last round. Officer Christian stated he acted as reasonably prudent officer would have acted under the same circumstances and believed other officers would conclude his actions were reasonable under the circumstances.
The record also includes Officer Christian's deposition testimony. Officer Christian testified consistently with his affidavit statements.
Officer Christian's expert, Commander Albert Rodriguez, agreed in his affidavit that Christian's perceptions and beliefs were reasonable. Commander Rodriguez reviewed the information Officer Christian had at the time of the incident and opined that the officer was justified in his actions. He confirmed that a reasonable officer could believe Vasquez's pit bull dog was in the process of attacking when it began charging and that a charging pit bull dog poses a risk of serious bodily injury or death to the officer. According to Commander Rodriguez, he believed Officer Christian faced a life-threatening emergency.
Commander Rodriguez indicated Officer Christian's use of his weapon when the dog charged was consistent with the reaction of a reasonably prudent officer in the same urgent circumstances. He stated a reasonable and prudent officer could have believed under the circumstances presented that deadly force was both justified and necessary to protect the officer's life. Commander Rodriguez noted that Officer Christian took precautions to minimize the risk of injury to Vasquez, including limiting the number of rounds fired and evaluating Vasquez's position in relation to the dog before firing. He thus averred that a reasonable officer could have believed the actions taken by Officer Christian were legal, necessary, and justified based on the circumstances that existed at the time of the incident.
We believe the aforementioned evidence conclusively demonstrates that a reasonably prudent officer might have decided to fire his gun under circumstances similar to those presented in this case. Because the City's summary judgment proof establishes that Officer Christian acted in good faith, the burden shifted to Vasquez to show no reasonable person in Officer Christian's position could have thought the facts were such that they justified the officer's acts. Vasquez, however, fails to meet her burden.
Vasquez claims the City cannot establish good faith in this case because the affidavit and deposition evidence reveals Officer Christian violated San Antonio Police Department policies when he recklessly shot at the dog. As previously noted, an officer's good faith is not rebutted by evidence that he violated the law or department policy in making his response. See Johnson, 142 S.W.3d at 596. Nor does recklessness in the performance of the officer's duty negate his good faith. Id. Officer Christian is therefore entitled to official immunity under the facts presented. When, as here, the officer is immune from liability because of official immunity, the City is also immune. See DeWitt, 904 S.W.2d at 654.
Conclusion
The judgment of the trial court is affirmed.