Alan Cooper//August 24, 2009
Alan Cooper//August 24, 2009//
A Fairfax judge has ruled that a former police officer did not have sovereign immunity when she ran a red light and hit and killed a motorist who had the right of way.
Circuit Judge R. Terrence Ney said the report of a fistfight that Amanda Perry was responding to could not reasonably be viewed as an emergency.
“[H]er belief that it was an emergency, simply put, does not make it an emergency,” Ney said.
The ruling means that her attorneys – Thomas J. Curcio and Gary W. Lonergan of Alexandria of Richmond and Roger T. Creager of Richmond – must prove only simple negligence at the trial of the wrongful death suit against Perry. A finding that sovereign immunity applied would have required them to prove gross negligence at the trial, which is scheduled for February.
Perry was charged with reckless driving, but a Fairfax County General District Court judge acquitted her of the offense. She resigned in March after police alleged that she had falsified time and attendance records while she was on administrative duty after the crash. She has not been charged in the alleged falsification.
According to pleadings in the case, the collision occurred about 4:50 p.m. on Feb. 12, 2008, when a cold rain had caused a number of accidents and an increase in radio traffic to police officers.
For that reason, a communications officer sent a text message for Perry to respond to a report of two white men hitting a black man at the entrance to a grocery store. Perry responded, also by text message, that she was headed for the store.
Her cruiser had a mobile video recorder that showed her passing other vehicles at what appeared to be a high rate of speed in the three miles she drove after responding to the dispatch.
The recording shows her entering the intersection with no apparent reduction in speed despite the red light. She acknowledged that she violated department orders that required her to use her horn and siren when entering an intersection against a light. She said she had tried to activate her siren as she approached the intersection where the collision occurred but was unable to do so.
A police officer who had trained Perry testified that Fairfax policy requires officers to pull over immediately and excuse themselves from a call when emergency equipment is not operating.
Within a minute of the collision, the communications officer sent another text message that the report of a fight had been changed to a shoplifting incident with a suspect in custody. Perry said she did not see the message because she was focused on her driving.
In arguing for sovereign immunity for Perry, her attorney, David J. Fudala of Fairfax, relied on the four-part analysis established by the Supreme Court of Virginia in James v. Jane, 221 Va. 43 (1980).
Under that analysis, a state or local government employee has such immunity when he performs a governmental function in which the government has a strong interest, the government exercises control over him and he must use his own judgment and discretion in performing the function.
Creager responded that later Supreme Court cases demonstrate that immunity depends on analysis of those factors as they apply in each case, rather than mechanical application of a checklist.
Those factors don’t point the same way in every case, he said. “A complete lack of discretion sometimes may support immunity. In other cases, the presence of discretion, in the sense of assigned discretion … may support immunity.
“The mere claim that ‘discretion’ and ‘judgment’ were exercised does not establish immunity,” Creager said. “If it did, anytime a governmental employee at trial intoned the words, ‘I used discretion,’ that would be the end of the matter.”