APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT. HONORABLE BARRY WILLETT, JUDGE. ACTION NO. 08-CI-007808.
BRIEFS FOR APPELLANT/CROSS-APPELLEE: Gary E. Siemens, Timothy D. Lange, Louisville, Kentucky.
BRIEFS FOR APPELLEE/CROSS-APPELLANT: Kevin C. Burke, Louisville, Kentucky; John Decamillis, Robert D. Mattingly, Louisville, Kentucky.
BEFORE: COMBS, STUMBO
AND THOMPSON, JUDGES.
William Mattingly filed this interlocutory appeal from an order of the Jefferson Circuit Court determining that he was not entitled to qualified official immunity and that a question of fact remained regarding whether Mattingly's actions were the proximate cause of an accident in which Latonia Mitchell was killed. Daisy Mitchell, as Administrator of the Estate of Latonia Mitchell, (the Estate) cross-appealed from that portion of the court's order granting summary judgment in favor of Mattingly in his official capacity as a Louisville Metro Police Department Officer and on the Estate's 42 U.S.C. § 1983 claim. We affirm the circuit court's determination that Mattingly is not entitled to qualified official immunity in his individual capacity. Because the remaining portions of the circuit court's order are not subject to immediate appeal, we do not address those issues.
This action was filed after an automobile collision occurred on January 22, 2008, that caused serious injury to Barbara Cowan and killed Latonia Mitchell. The events leading to the collision began when Mattingly, working as an on-duty Louisville Metro Police Officer, observed a black
BMW, later determined to be operated by Gabriel Nelson, speeding on the Watterson Expressway. Mattingly activated the lights on his Ford F-250 marked police truck, followed the BMW down the Third Street exit ramp, and attempted to stop the BMW at a nearby convenience store. Although the BMW appeared to be stopping, it reentered the Watterson and a high-speed pursuit ensued.
Officer Sutherland, also an on-duty Louisville Metro Police Officer, was driving on the Watterson when he observed the pursuit. However, because he believed that the pursuit was not in accordance with the Louisville Metro Police Department's Standard Operating Procedures, he did not join the pursuit and stationed his vehicle at the bottom of the Taylor Boulevard exit with his lights engaged.
With Mattingly in pursuit, the BMW exited the Watterson at Taylor Boulevard and proceeded past Sutherland's vehicle. Mattingly passed Sutherland's vehicle but shortly thereafter disengaged the chase. However, several blocks away but within sight of Mattingly and Sutherland, the BMW collided with Cowan's vehicle.
After an investigation by the Louisville Metro Police Department, Mattingly was found guilty of misconduct for violating the Department's Standard Operating Procedures when he pursued the BMW at a high rate of speed on wet road conditions for a traffic violation with minimal ability to apprehend Nelson and without considering the risk created against the need for apprehension. The specific sections Mattingly violated provide as follows:
POLICY REVIEW: PURSUITS DEFINITION
S.O.P. 12.1.2 states:
Pursuit: An active attempt by a law enforcement officer operating a police vehicle, utilizing emergency equipment, to apprehend the operator of a fleeing vehicle who is attempting to avoid arrest by using speed or other evasive tactics.
RESPONSIBILITIES OF PRIMARY UNIT
S.O.P. 12.1.3 states:
The decision to initiate a pursuit must be based on the pursuing officer's reasonable belief that the suspect is a felon or suspected felon. The officer must weigh the immediate danger or potential danger to the public should the suspect be allowed to remain at large against the danger or potential danger created by the pursuit itself.
o Nature and seriousness of the offense
o The amount of vehicular and pedestrian traffic in the area
o Likelihood of successful apprehension
o Area or location characteristics
o Availability of assistance
o Environmental conditions (e.g. lighting and weather)
o The performance capabilities of the pursuit vehicle
o The condition of the road surface on which the pursuit is being conducted
o The officer's familiarity with the geographic area of the pursuit
The officer initiating the pursuit shall, as soon as practical, provide the following information by radio:
o Car number
o Direction of travel