Opinion
2023-SC-0129-DG
12-19-2024
SUSAN SHEEHY APPELLANT v. HENRY VOLENTINE, INDIVIDUALLY, AND HARDIN COUNTY OFFICE OF SHERIFF APPELLEES
COUNSEL FOR APPELLANT: Adrian Mendiondo Morgan &Morgan Kentucky, PLLC COUNSEL FOR APPELLEE: R. Keith Bond Coleman Lochmiller &Bond
ON REVIEW FROM COURT OF APPEALS NO. 2022-CA-0336 HARDIN CIRCUIT COURT NO. 16-CI-01433
REVERSING &REMANDING
COUNSEL FOR APPELLANT: Adrian Mendiondo Morgan &Morgan Kentucky, PLLC
COUNSEL FOR APPELLEE: R. Keith Bond Coleman Lochmiller &Bond
OPINION
CONLEY, JUSTICE
This case is before the Court upon review of the Court of Appeals' opinion that held Henry Volentine is entitled to qualified official immunity and the Hardin County Office of Sheriff (HCOS) is entitled to governmental immunity. After consideration of the record and arguments, we reverse the Court of Appeals. Qualified official immunity cannot be applied in cases where a government official violates a ministerial duty or lacks good faith in the exercise of a discretionary authority. Volentine failed to abide by the ministerial duties placed upon him by the policies and procedures of the HCOS; and the trial court concluded he lacked good faith in exercising his discretion to initiate pursuit. As such, he is not entitled to qualified official immunity. Consequently, by operation of KRS 70.040, the HCOS' governmental immunity is waived. We remand to the Hardin Circuit Court for further proceedings consistent with this opinion.
I. Facts and Procedural Posture
Officer Henry Volentine, a deputy of the Hardin County Office of Sheriff, initiated a traffic stop of Maurice Green on October 14, 2014. The two were driving along 31W Bypass when Volentine spotted Green's vehicle driving suspiciously. Volentine ran the license plate number, and it came back as belonging to a different vehicle, as well as being expired. Green turned onto Dixie Highway 31W and Volentine pulled him over. Green pulled over into a Speedway parking lot. As Volentine recounts, he approached the vehicle's driver side and just before making contact with Green, Green drove off. Volentine states,
[a]t that time . . . It was a female was at her-vehicle coming around the corner of the vehicle, which I thought he hit her. And he come around in-in front of the building . . . [a]nd there was another pedestrian or customer walking out of the Speedway who had to basically throw themselves out of the way to prevent from being hit by Mr. Green[.]
Volentine went on to testify that as for the female, she was outside her own car and that she was between her car and Green's as Green essentially did a U-turn in the Speedway around the gas pumps. Volentine believed Green had "basically . . . side-swiped her[,]" with the side of his car, probably the passenger side mirror. Volentine testified, however, that he did not render assistance to the female, nor did he call for an ambulance as she remained standing and walked away. As for the male pedestrian, Volentine testified that individual
more or less had to make an immediate action to kind of jump out of the way of the vehicle without being hit . . . he didn't dive but . . . it was . . . [a] jump motion. He kind of run out of the way . . . [a]nd then he was obviously turned around watching the vehicle as he [Green] was exiting the parking lot.
Volentine testified Green's actions with respect to these two persons were, in his belief, assault in the first degree and wanton endangerment in the first degree; and therefore, he decided to pursue Green's vehicle. Surveillance footage from the Speedway captured the events in question; Volentine concedes this in his brief-"The actual events in the parking lot at Speedway were captured on video." The trial court reviewed this video and concluded that "no pedestrian was actually hit or almost hit [by Green's vehicle]." More importantly, the trial court concluded there was "no female near Green's car[.]" As to the male alleged to have jumped out of the path of Green's vehicle, the trial court concluded "[a]t no point in the frames did the pedestrian appear close to Green's car, seem to move to avoid being hit by Green's car or even react to Green's car driving by."
The video from Speedway submitted in the record was incapable of being viewed by this Court. After encountering issues, the IT department confirmed that a proprietary program was used that internal security protocols prevented from running on AOC computers. While this Court could have ordered the parties to submit this evidence in a proper format, we declined to do so because the trial court's factual conclusions about what the Speedway video shows have never been challenged by Volentine before this Court or the Court of Appeals. Instead, Volentine has argued more broadly that the trial court improperly relied upon the video evidence to contradict Volentine's own perception of events. In brief, any argument that the trial court's factual conclusions about the video are clearly erroneous has not been preserved.
As for the pursuit itself, Volentine testified Green initially
had been speed limit and in-just luckily all the lights that hit were green at [sic] point in time. But once we got up there, I
believe, at-at Veterans Parkway there and Dixie, the light was red, so traffic was backed up. That's when he veered over into the oncoming traffic and was headed northbound in the southbound lanes.
Volentine was asked if he believed that at said point in time Green "pose[d] an extreme safety hazard to the public?" Volentine answered "Yes." He was asked that as the pursuit continued from that point forward "did you continue to perceive him to present an extreme safety hazard to the public?" He answered, "Yes." Green eventually struck Susan Sheehy's vehicle in a head-on collision resulting in the present litigation.
There are several policies forming the background to Volentine's status as entitled or not entitled to qualified immunity. For ease of reference, we will refer to these as Standard Operating Procedures (SOP). Regarding initiation of pursuit, the first relevant policy is SOP 17.9(1), which lists four conditions that "[a] vehicle pursuit must consist of . . .", the last being "[t]he deputy must have reasonable suspicion to believe that the violator being pursued is a felon or a suspected felon." SOP 17.9(A) then goes on to state, "Pursuits shall be for a violent felony offense use of force likely to cause death or serious physical injury, or threatened use of such force." The next policies are in SOP 17.9(B)(4), entitled "Termination of a Felony Pursuit ...." There are three subsections to this policy, the second being SOP 17.9(B)(4)(b), entitled "Strong Consideration should be given to terminating a felony pursuit when ...." In contrast, the relevant procedures here occur in SOP 17.9(B)(4)(c), entitled "Deputies Will Terminate A Pursuit When ...." Specifically, Sheehy alleges Volentine violated SOP 17.9(B)(4)(c)(1), "The circumstances of the pursuit present an extreme safety hazard to the public, the deputy, or the suspect[;]" and SOP 17.9(B)(4)(c)(2), "No Field Supervisor or higher authority can be contacted to approve the pursuit's continuation."
The facts regarding the initiation of the pursuit have already been detailed. We have also detailed Volentine's testimony that the pursuit did not initially present an extreme safety hazard because Green was within the speed limit and managed to hit only green lights; but at some point, near Veterans Parkway, Green ran a red light, in a congested traffic area, by accelerating beyond the speed limit and crossing over into the oncoming traffic lane. At that point, and continuously afterward, Volentine testified without equivocation that the pursuit presented an extreme safety hazard to the public. As to the failure to receive approval from a supervisor or higher authority to continue pursuit, Volentine testified, "[t]here was no one to contact . . . [t]hey weren't available." Volentine believed that the policy only applied if a supervisor was available to contact. On the other hand, Volentine acknowledged
if I went to a call and had an issue, yes, there was someone-there should have been someone available out of the two or three that could have answered the phone. As far as during the pursuit, was there anyone that I could reach via two-way radio or anything like that, minus stop-stopping and making a phone call, no.
In fact, Volentine identified five persons who were above him in the chain of command on that day-the sheriff, a Lieutenant, two Sergeants, and an Executive Officer-only one of whom, the Shift Sergeant, was identified by Volentine as being "not on duty" that day. There is no explanation by Volentine as to why he could not have contacted the other four, save that they were not available to be contacted via two-way radio. Volentine also acknowledged that his dispatcher could have attempted to call these four other men on his behalf, but "I don't know if they were or not."
At the trial court, the court denied Volentine's and HCOS' motion for summary judgment based on qualified immunity and governmental immunity. The trial court made factual conclusions based on the Speedway video that Volentine did not have a reasonable basis to believe a felony that could cause death or serious physical injury had occurred to initiate a pursuit. Although the trial court believed the decision to initiate pursuit was discretionary, it proceeded to the good faith element and ruled that the decision was not in good faith because of the lack of a reasonable basis in fact. As for the failure to terminate pursuit because a supervisory officer could not be contacted to approve continued pursuit and because of extreme hazard to the safety of the public, the trial court ruled these policies were ministerial. Volentine and HCOS appealed. The Court of Appeals reversed on all three decisions. Its reasoning will be detailed below as each policy is discussed. We now proceed to the merits.
II. Standard of Review and Governing Law
The denial of a claim of immunity is immediately appealable. Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). "[O]nce the material facts are resolved, whether a particular defendant is protected by official immunity is a question of law . . . which we review de novo." Rowan Cnty. v. Sloas, 201 S.W.2d 469, 475 (Ky. 2006) (internal citations omitted).
Governmental immunity is a concept partially grounded in common law and "partially grounded in the separation of powers doctrine embodied in Sections 27 and 28 of the Constitution of Kentucky." Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001). The rule is that "a state agency is entitled to immunity from tort liability to the extent that it is performing a governmental, as opposed to a proprietary, function." Id. This would apply to the HCOS so long as the actions of Volentine are subject to qualified immunity. But the General Assembly has waived governmental immunity for sheriffs' offices based on the underlying conduct of a deputy. KRS 70.040; Jones v. Cross, 260 S.W.3d 343, 346 (Ky. 2008).
Sheehy has raised the argument that governmental immunity should be waived for the HCOS even if Volentine's conduct is covered by qualified immunity, so long as his actions were negligent. We do not need to answer that question to resolve the case and decline to address it.
Qualified official immunity "affords protection from damages liability for good faith judgment calls made in a legally uncertain environment." Yanero, 65 S.W.3d at 522. It "applies [only] to the negligent performance by a public officer or employee of (1) discretionary acts or functions . . . (2) in good faith; and (3) within the scope of the employee's authority." Id.
Conversely, an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.Id. Finally, we recently reiterated in Meinhart v. Louisville Metro Government, that determining whether an official is entitled to qualified immunity turns upon "the actor's status as a government official; the ministerial/discretionary distinction; if the act was ministerial, was the actor negligent; and, if the act was discretionary, was it done in good faith and within the scope of the officer's authority." 627 S.W.3d 824, 830 (Ky. 2021). "[E]xamining the pertinent rule, policy, or regulation governing the challenged conduct is all that is necessary to make the characterization . . . [between a ministerial or discretionary act.]" Id. "Compliance with the rule, policy, or regulation . . . is relevant [only] to negligence and the issue of whether the act was undertaken in good faith." Id.
Therefore, following the rubric of Yanero and Meinhart, there is a two-step analysis to undertake to determine qualified official immunity. First, a court must look at the defendant and whether he is a government official acting within the scope of his duty and review the relevant statute, regulation, rule, or policy to determine if the action is ministerial or discretionary. If ministerial then that is the end of the inquiry; trial courts do not proceed to the question of whether the conduct constitutes negligence. "Whether his actions . . . amount to a tort or not depends on whether he negligently failed to perform his mandatory acts, or negligently performed them, which is a question for a jury, assuming of course there is evidence that he acted unreasonably, that is, negligently." Marson v. Thomason, 438 S.W.3d 292, 301 (Ky. 2014). On the other hand, "[o]nce the officer or employee has shown prima facie that the act was performed within the scope of his/her discretionary authority, the burden shifts to the plaintiff to establish by direct or circumstantial evidence that the discretionary act was not performed in good faith." Yanero, 65 S.W.3d at 523.
These two steps must not be confused. The first has the burden upon the defendant but does not consider the actions of the defendant, i.e., whether they were negligent or acting in good faith. The second step shifts the burden to the plaintiff only after the defendant has made a prima facie showing that his actions were discretionary and within the scope of his authority.
Although there is a two-step analysis, and conceivably an issue of qualified immunity could turn merely upon the first step, we do not agree that the question of good faith is not presented by this case. The Court of Appeals stated that "Sheehy does not allege that Volentine acted in bad faith or outside the scope of his authority." But Sheehy was the Appellee below and had no duty of preservation. "Where the prevailing party seeks only to have the judgment affirmed, it is entitled to argue without filing a cross-appeal that the trial court reached the correct result for the reasons it expressed and for any other reasons appropriately brought to its attention." Commonwealth, Corr. Cabinet v. Vester, 956 S.W.2d 204, 205-06 (Ky. 1997). And Sheehy has consistently maintained in the Court of Appeals, as well as the motion for discretionary review and brief before this Court, that the evidence below contradicted Volentine's claims that a female was struck by Green or that a male was almost struck by Green when he drove out of the Speedway. In other words, she has consistently argued that the trial court was correct. The trial court in turn plainly considered itself to be making a good faith determination regarding the initiation of pursuit because it concluded that Volentine had made the prima facie showing that his decision to initiate the pursuit was discretionary.
Finally, when determining whether Volentine was entitled to official immunity regarding SOP 17.9(A) (initiating pursuit), the Court of Appeals held, "Volentine believed that he witnessed Green commit either assault in the first or second degree, both of which are felony offenses, upon two persons in the parking lot[,]" and "the trial court erroneously disregarded Volentine's real time perception of the events leading up to the pursuit[.]" These are statements focusing upon Volentine's good faith. Similarly, for concluding qualified immunity existed for SOP 17.9(B)(4)(c)(2) (continuing pursuit with supervisor approval), the court held, "Volentine's belief that he complied with this SOP entitles him to qualified immunity, even if his belief was mistaken." This too is a statement as to Volentine's good faith and negligence. Only for SOP 17.9(B)(4)(c)(1) (continuing pursuit posing extreme safety hazard) did the Court of Appeals focus solely on the language of the SOP to determine if it imposed a ministerial or discretionary duty. The question of good faith therefore is adequately preserved.
III. Analysis
We agree with the trial court and Court of Appeals that the decision to initiate the pursuit was discretionary. Importantly, however, the discretion only arises when the officer has a reasonable suspicion that "a violent felony offense use of force likely to cause death or serious physical injury, or threatened use of such force[,]" occurred. As we acknowledged in Meinhart, policies that "contain explicit restrictions on initiation and termination of pursuits which are simple and definite, leaving nothing to the discretion of the officer . . . create ministerial duties." Meinhart, 627 S.W.3d at 834. SOP 17.9(1)(d) and 17.9(A) placed an explicit restriction on pursuits; limiting them only to known or suspected felons and a further limitation that the felonies had to be violent, using force that could cause death or serious physical injury or the threat of such force. It is ministerial in that regard, but discretionary if such a violent offense occurred. Volentine testified that he believed such a use of force occurred because he thought Green struck a female with his car and almost struck a male with his car. Thus, his testimony sufficed for the prima facie showing that his decision to initiate pursuit was discretionary and within the scope of his duties as a deputy sheriff. The second step in the analysis requires a determination whether that decision was made in good faith.
Engaging this second step, the trial court concluded Volentine's belief that Green had hit or nearly hit pedestrians was not in good faith because he "has to have had a reasonable belief that a felony had been committed." Based upon video evidence from the Speedway, the trial court concluded the video demonstrated no female was near Green's car who was in danger of being struck or actually struck. It is also worth noting that Volentine never called for an ambulance to render aid to this female pedestrian, which we think is a significant omission for any law enforcement officer who sincerely believes a pedestrian has been injured. Sheehy points out, and Volentine has not offered any evidence to the contrary, that no female pedestrian allegedly struck by Green has ever been identified. The trial court also concluded that no male pedestrian was near Green's car when he drove off. To quote the trial court, "[a]t no point in the frames did the pedestrian appear close to Green's car, seem to move to avoid being hit by Green's car or even react to Green's car driving by." The trial court then noted that Volentine himself appeared to be on the other side of the gas pumps at the time "and might not have had the best view as Green drove away[.]" But the trial court reasoned that such a circumstance only underscored the fact that Volentine's professed belief that a pedestrian had been or almost struck was unreasonable. The Court of Appeals concluded that the trial court "impermissibly relied on its review of Speedway's video footage in hindsight[,]" and should have only considered whether Volentine had articulated reasonable suspicion to initiate the pursuit.
Keeping in mind that Volentine and HCOS moved for summary judgment on the basis of qualified and governmental immunity, thereby necessitating the trial court review the evidence and make limited factual findings based on the evidence in the record, we reject the Court of Appeals' analysis; specifically, that the trial court "impermissibly relied on" video evidence in making a good faith determination. First, the use of the phrase "in hindsight" is a mischaracterization of the evidence and what the trial court did. As a simple matter of time and physics, all courts in almost every case review evidence "in hindsight." If any evidence below is "in hindsight" then it is Volentine's recounting a past event from his own memory. The video footage at least has the virtue of recording events in real time that are subsequently capable of being reviewed for what it shows free from the vagaries of human memory and human bias. The video footage recorded the same events that Volentine recounted thus, both were "real time perception" of the event in question. We acknowledge that the eyesight of police officers and the perspective of a video camera can be different; and in acknowledging that truth, police officers may react to something off-camera that governs their actions. In such instances the testimony of the officer himself may be the most credible or the only evidence. That is not the case, however, in all circumstances. It can be just as true that an officer's perception and the camera's perspective encompass the same area. In such instances, when a discrepancy exists between the video and the inperson testimony, an issue of weight and credibility is presented for the factfinder, subject only to the clear error review of appellate courts under CR52.01. This case is such a scenario.
Kentucky Civil Rules of Procedure.
We acknowledge this argument was not presented by the parties. But "[w]hen the facts reveal a fundamental basis for decision not presented by the parties, it is our duty to address the issue to avoid a misleading application of the law." Mitchell v. Hadl, 816 S.W.3d 183, 185 (Ky. 1991). Additionally, in previous qualified immunity cases, we have employed the rule "that this Court may affirm the trial court for any reason in the record." Peterson v. Foley, 559 S.W.3d 346, 349 (Ky. 2018). As explained in the body of the opinion, we believe the Court of Appeals has overstepped its bounds as an appellate court on an evidentiary issue, which in turn fundamentally altered its analysis regarding the question of whether Volentine's decision to initiate pursuit was in good faith.
For Volentine to conclude that Green committed a felony by striking or nearly striking a pedestrian, he obviously would have had to have focused on Green's car and the immediate area around it. Nothing occurred off-camera that justifies ignoring the video evidence, much less holding it altogether impermissible to be considered as the Court of Appeals held. We note that under the Kentucky Rules of Evidence (KRE), the admission of video evidence is governed by Rule 901. In Litton v. Commonwealth, we explained that photographic evidence is typically admitted "as demonstrative evidence on the theory either that they are merely a graphic portrayal of oral testimony or that a qualified witness adopts the photograph as a substitute for words." 597 S.W.2d 616, 618 (Ky. 1980). We also embraced the rule, "that a photograph can be admitted into evidence not merely as illustrative of testimony but as probative evidence of what it shows." Id. at 619. We affirmed Litton as "entirely consistent with the KRE" in Gosser v. Commonwealth, 31 S.W.3d 897, 902 (Ky. 2000). Therefore, the video evidence in this case was either admitted as substantive evidence of what it shows or as demonstrative evidence in aid of Volentine's testimony. In either case, the trial court is acting as the factfinder, Meinhart, 627 S.W.3d at 829-30, and is empowered to make the determination that the video "speaks for itself" as a matter of substantive evidence or that the video is in fact inconsistent with Volentine's testimony, if viewed as demonstrative evidence. The Court of Appeals cited no statute, rule of evidence, or case (and we doubt such authorities exist) that categorically prohibits video evidence from being considered by a trial court when determining whether qualified official immunity applies.
As we have stated, scenarios will certainly exist where a camera is not in a position to record all the relevant events or even a singular, but critical event, in order to determine whether an officer is entitled to qualified immunity. In such instances, the trial court, acting as factfinder, can rely on the testimony of the witnesses. But the trial court is also entitled to admit video evidence. Brafman v. Commonwealth, 612 S.W.3d 850, 868 (Ky. 2020) ("In general, all relevant evidence is admissible."). When the video evidence and the officer's testimony both regard the same events and are contradictory, the trial court- again in its capacity as factfinder-is empowered to note the inconsistency, weigh the evidence, and make credibility determinations. The factfinder, not appellate courts, judges "the credibility of the witnesses and the weight to be given their testimony." Jones v. Commonwealth, 210 S.W.2d 956, 957 (Ky. 1948); see also Kentucky Properties Holding LLC v. Sproul, 507 S.W.3d 563, 568 (Ky. 2016) (credibility determinations and weight given to evidence is "exclusive province of the trial court.").
Therefore, the Court of Appeals erred both in holding that the trial court "impermissibly relied" upon the Speedway video evidence; and, therefore, substituting its judgment as to the weight of evidence to be given to Volentine's testimony. The trial court believed the video evidence contradicted Volentine's testimony. The admission of the video has not been challenged as an evidentiary matter nor has the trial court's conclusions based on that video been challenged as clearly erroneous under CR 52.01. As the trial court summarized,
While the court understands the delicate balance to protect reasonable judgment calls of officers, even if those judgments are not correct, it cannot give blanket permission for judgment to be made based on a belief when no evidence is present to support that
belief was reasonable and direct evidence is presented to contradict it.
In other words, the trial court required Volentine's belief to have a reasonable basis in fact; that it is insufficient merely to assert a good faith belief. We fail to see how that is an incorrect statement of law. Spillman v. Beauchamp, 362 S.W.2d 33, 37 (Ky. 1962) (allegation in complaint that circuit court had previously determined a cow to be free from disease, if true, would furnish basis for finding bad faith because it would mean there was "an absence of reasonable grounds for the officers to believe the cow to be diseased[.]"). The policies at issue specifically required reasonable suspicion "that the violator being pursued is a felon or a suspected felon[,]" and that said felony perpetrated or threatened death or serious physical injury. If the perception of the underlying factual events forming the suspicion is itself unreasonable then the suspicion can also be rendered unreasonable.
Here we note that mistakes of fact do not automatically negate the reasonableness of a suspicion. The Fourth Amendment requires not that government agents "always be correct, but that they always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). On the other hand, "the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability." Brinegar v. United States, 338 U.S. 160, 176 (1949). This is not a Fourth Amendment case so the trial court obviously was not expected to cite such cases or use such language, but it can be said that the trial court's conclusion fits this framework.
We note that Meinhart's language that "it is not in the public's interest to allow a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a police officer's discretionary professional duty[,]" is inapplicable. Meinhart, 627 S.W.3d at 825. To say that a jury ought not question the discretionary acts of police officers does not mean no one ought to question them. The very fact that our law requires a good faith element to discretionary acts prior to granting qualified immunity implies that someone will review those actions if they are the subject of a lawsuit. If it is not a jury question, then it is manifestly one for the trial court. And if this review is to be meaningful, to be something more than a rubber-stamp, then it must be that an officer's assertions must have a reasonable basis in fact.
Accordingly, we reverse the Court of Appeals and affirm the trial court. It made factual conclusions that the video evidence demonstrates no pedestrians were in the vicinity of Green's vehicle when it drove off such that Volentine's professed belief that Green had struck or almost struck a pedestrian could not be considered reasonable. Consequently, it was unreasonable and the decision to initiate pursuit cannot be considered to have been taken in good faith; thus, qualified immunity does not apply to Volentine's decision.
As for SOP 17.9(B)(4)(C)(2), that policy requires that "Deputies Will Terminate A Pursuit When: . . . No Field Supervisor or higher authority can be contacted to approve the pursuit's continuation." According to the first step of our analysis, this policy imposes a ministerial duty. It leaves no discretion to the pursuing officer to not contact a higher authority in his chain of command or otherwise to continue a pursuit based on his own judgment. This policy contains no caveats or exceptions. This policy imposes a duty that "is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Yanero, 65 S.W.3d at 522. Once engaged in a pursuit (the fixed and designated fact) Volentine was required to get approval of a higher authority in his chain of command to continue it. Absent approval, he was required to terminate it. Volentine argues, and the Court of Appeals agreed, that his chain of command was functionally non-existent at the time of pursuit. According to Volentine, the persons in the chain of command above him were not capable of being contacted for approval, therefore, he was the senior officer on duty, and he was empowered to determine whether he should continue pursuit. We disagree.
First, neither Volentine nor the Court of Appeals cites language in the policy that addresses the failure of a chain of a command when a deputy is engaged in a pursuit and is functionally unable to get the mandated approval. That the policy required such approval for a pursuit to be continued is not in doubt; indeed, the language of the policy is directly on point: pursuit will be terminated when "[n]o Field Supervisor or higher authority can be contacted to approve the pursuit's continuation." (emphasis added). Volentine is arguing that no higher authority could be contacted via two-way radio. The failure of the chain of command and the inability to obtain approval to continue pursuit only makes the ministerial duty to end the pursuit all the more emphatic-it does not transform a ministerial duty into a discretionary authority. The purpose of the policy is to remove the decision to continue pursuit from the pursuing officer to a higher authority, who is a step removed from the immediate circumstances surrounding the pursuit and therefore provides a more detached, objective decisionmaker. The policy is patently ministerial and applies to the facts of Volentine's case. "[A]n officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act[.]" Id.
The Court of Appeals determined that Volentine's belief that he did not have to contact a superior officer to obtain approval to continue pursuit was reasonable though mistaken, and therefore he was entitled to immunity. The Court of Appeals' citation to Ashcroft v. al-Kidd, 563 U.S. 731 (2011) and Boyd v. Baeppler, 215 F.3d 594 (6th Cir. 2000) are unavailing and misconstrue the law. Boyd, for instance, dealt with a quintessential discretionary decision of an officer alleged to have used excessive force in shooting the decedent and whether such force was reasonable "in response to a dangerous, split-second encounter late at night with an armed man reported to have been shooting the gun he had in hand pointed at the officer." Id. at 601. Ashcroft addressed "whether a former Attorney General enjoys immunity from suit for allegedly authorizing federal prosecutors to obtain valid material-witness warrants for detention of terrorism suspects whom they would otherwise lack probable cause to arrest." Ashcroft, 563 U.S. at 733. Thus, the Supreme Court had to consider whether detention of al-Kidd under a material witness warrant violated a clearly established constitutional right, id. at 735, which is not the analysis here. As we made clear above, under Kentucky law, once a duty has been determined to be ministerial, the question of negligence is one for the jury. Thomason, 438 S.W.3d at 301. As we explained,
[t]here is certainly the temptation to say that a person . . . acts in a discretionary manner, so that he may have immunity from suit, when the ministerial act he is required to do . . . can have unexpected events occur . . . But that does not mean his . . . duty was discretionary, such that he would have immunity from suit.Id. Because the policy imposed a ministerial duty, the question of whether Volentine's actions were reasonable under the circumstances "must be viewed through the lens of negligence." Id. A jury may very well conclude Volentine acted reasonably in not seeking approval to continue pursuit because of his belief that no superior officer could be contacted via two-way radio. "But that does not mean such a claim is barred by immunity." Id. There is no good faith exception to the alleged negligent performance of a ministerial duty. See e.g., Jones v. Lathram, 150 S.W.3d 50, 53-54 (Ky. 2004) (holding safely driving a police cruisier during emergency response is ministerial, but question of negligent operation was one for jury.).
As for SOP 17.9(B)(4)(c)(1), that policy states "Deputies Will Terminate A Pursuit When: ... The circumstances of the pursuit present an extreme safety hazard to the public, the deputy, or the suspect." The Court of Appeals held Volentine is entitled to qualified immunity because "[a]lthough the wording of the HCOS SOP appears mandatory or ministerial, it requires an officer's discretion to determine when the 'circumstances of the pursuit present an extreme safety hazard to the public, the deputy, or the suspect.'" In other words, there is a threshold discretionary decision of the pursuing officer-does the pursuit present an extreme safety hazard-that occurs prior to the ministerial duty.
We reject this rationale. In Yanero, when we held that a ministerial duty exists "involving merely execution of a specific act arising from fixed and designated facts[,]" we immediately stated "[t]hat [because] a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature." Yanero, 65 S.W.3d at 522. The Court of Appeals correctly pointed out, quoting from the preamble to HCOS' policies, that
It is difficult if not impossible to describe exactly how a fleeing motorist can or should be apprehended or the manner in which the deputies should respond to calls or emergency assistance, except to say that it must be done legally and safely. It is also difficult to list the specific traffic regulations that officers may or may not disregard. Likewise one cannot set a safe maximum speed or in all cases specify the maximum number of deputies and vehicles that should be involved. The pursuing/responding deputy and/or supervisor shall, in a short period of time, use their own best judgment including their training and experience, bearing in mind, the policies and procedures and directions outlined in these guidelines and apply them collectively to the existing circumstances.
But this is merely a roundabout way of saying that each scenario must be judged on its own facts; but in all scenarios a pursuit must be conducted "legally and safely." Indeed, the opening paragraph of the preamble that the Court of Appeals omitted states, "the apprehension of one or more occupants of a moving motor vehicle is to be considered secondary in importance to safety."
The simple truth is in practically every situation where a ministerial duty arises there is a threshold determination by the officer to ascertain the underlying facts giving rise to that ministerial duty. That reality does not transform a ministerial act into a discretionary one. Followed to its logical conclusion, the Court of Appeals' reasoning would negate the discretionary/ministerial distinction. This is because all that would be necessary for an officer to meet the first Yanero element under the Court of Appeals' rationale would be for the officer to assert that he exercised his discretion to determine whether the situation was covered by a ministerial duty. That is precisely the kind of argument rejected by Yanero, 65 S.W.3d at 522, and it has been rejected elsewhere. For instance, we have held "[t]he duty to report bullying is clearly ministerial, but it could be argued that determining whether bullying is occurring requires judgment and is, therefore, discretionary. However, our case law disagrees." Patton v. Bickford, 529 S.W.3d 717, 728 (Ky. 2016). And, indeed, Volentine testified at deposition that the pursuit did pose an extreme safety hazard after Green veered into the oncoming traffic lane.
We have previously warned, and must now warn again, that "[r]ecasting an otherwise ministerial duty as discretionary simply because it required some modicum of discretion of judgment 'would undermine the rule that an act can be ministerial even though it has a component of discretion.'" Id. (quoting Thomason, 438 S.W.3d at 302). The Court of Appeals also cited to the case of Scott v. Harris, where the Supreme Court of the United States opined that "we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people's lives in danger." 550 U.S. 372, 385-86 (2007). But Scott was considering whether such a rule was mandated by the Fourth Amendment. Id. at 383. It is therefore inapposite as we are not considering the Fourth Amendment or its corollary in Kentucky's constitution. We are enforcing a policy issued by the HCOS.
Patton likewise reiterated the rule that existence of a ministerial duty is all that is necessary to deny qualified immunity but "[t]hat is, of course, not to say they are liable." Patton, 529 S.W.3d at 728. The question of negligence is for the jury so long as there is a genuine issue of material fact. Id. The existence of a genuine issue of material fact was not addressed below but we note the irreducible facts of this pursuit are that it occurred on a two-lane road, in the middle of the day, in a 35 miles per hour traffic zone, reaching speeds of at least 80 miles per hour. Volentine agreed at deposition that once Green weaved into the oncoming traffic lane, running a red light by Veterans Parkway, the pursuit did pose an extreme safety hazard to the public and continued to do so from that point onward. Volentine's also affirmed at deposition that he had made an admission to interrogatories that prior to the collision he was preparing to terminate the pursuit. Nonetheless, Volentine affirmed "Yes, sir[,]" when asked, "you agree you don't actually stop pursuit, correct?" Finally, Volentine testified he had already taken steps to disengage the pursuit, such as slowing down to give Green more space, a minute prior to the collision. Further discovery may make this particular question suitable for summary judgment but at this point in the litigation there is a genuine issue of material fact as to whether Volentine failed to or otherwise negligently performed the ministerial duty to terminate pursuit when said pursuit presented an extreme safety hazard to the public, or Green, or himself.
Finally, because we conclude that qualified immunity does not apply to Volentine's actions, KRS 70.040 operates as a waiver of the HCOS' governmental immunity. Jones v. Cross, 260 S.W.3d 343, 346 (Ky. 2008). The Court of Appeals is accordingly reversed as to that issue as well.
IV. Conclusion
In this case, two of the policies imposed ministerial duties upon Volentine. "If the negligent acts of public officers or employees are ministerial, there is no immunity." Autry v. W. Ky. Univ., 219 S.W.3d 713, 717 (Ky. 2007). Regarding the one policy that was discretionary, the trial court correctly determined that Volentine's action must nonetheless have been taken in good faith, i.e., that Volentine's reasonable suspicion to believe that a violent felony offense that could or did cause death or serious physical injury occurred had a reasonable basis in fact. As we acknowledged in Meinhart, in determining whether qualified immunity exists the trial court "must make certain factual findings[.]" Meinhart, 627 S.W.3d at 829. In this capacity as a factfinder, the trial court must have the concomitant authority to judge credibility and give weight to the evidence. Unless a factual conclusion is clearly erroneous, neither the Court of Appeals nor this Court has authority to set those conclusions aside. The trial court below clearly gave more weight to the video evidence in determining that no pedestrian had been struck or was in danger of being struck by Green. Therefore, for all the policies alleged to have been violated by Volentine, qualified immunity does not apply. The Court of Appeals is reversed, and this case is remanded to Hardin Circuit Court for further proceedings consistent with this opinion.
All sitting.
VanMeter, CJ; Bisig, Keller, Lambert, and Nickell, JJ, concur Thomson, J, concurs by separate opinion.
THOMPSON, J., CONCURRING: I concur with the majority opinion that qualified immunity does not apply to shield Deputy Henry Volentine's actions. He made, at best, questionable decisions to initiate a pursuit, recklessly continue the pursuit on public roads at 100 mile per hour, and then fail to follow his department's written policies which require the termination of a pursuit unless given the approval of a "Field Supervisor or higher authority." I write separately to emphasize the emergent need for our Commonwealth to reexamine all its law enforcement agencies' pursuit policies and abandon practices that lead to the injuries and deaths of far too many innocent motorists.
Before our Court is a plaintiff, a lady who was innocently driving along South Wilson Road in Hardin County to pick up her daughter from her sister's house when she was struck head-on at over 100 miles per hour by the vehicle being pursued by Deputy Volentine. She underwent multiple surgeries to repair several pelvic fractures, a femur fracture, and two foot fractures. She will never fully recover and lives in constant pain.
Unfortunately, she is not alone. Any time an officer initiates a high-speed chase, there is a good possibility someone will be hurt. Crashes occur in over thirty percent of all police pursuits. Those crashes result in injuries and deaths. One out of every 100 high-speed pursuits result in a fatality and innocent third parties like Ms. Sheehy, who just happen to be in the way, constitute up to forty-two percent of persons killed or injured in police pursuits. Only ten percent of high-speed chases are pursuits of those who have committed violent crimes. The vast majority of pursuits involve property crimes, other minor crimes, and citable traffic offenses. One study alarmingly ranks Kentucky 15th in the nation for police pursuit fatalities for the five-year period of 2017 through 2022.
Police Executive Research Forum, Vehicular Pursuits: A Guide for Law Enforcement Executives on Managing the Associated Risks, at 25 (2023), Washington, DC: Office of Community Oriented Policing Services. Available online at: https://portal.cops.usdoj.gov/resourcecenter/content.ashx/cops-r1134-pub.pdf.
John Hill, High-Speed Police Pursuits: Dangers, Dynamics, and Risk Reduction, FBI Law Enforcement Bulletin (July 2002).
Police Pursuit Policies Should be More Restrictive to Save Lives, Police Executive Research Forum (September 23, 2023), https://www.policeforum.org/trending23 sep23.
S. Neilson, J. Golan, and J. Haseman, Database: Police chases kill hundreds every year - most victims aren't the drivers being pursued. Times Union and San Francisco Chronicle. Available online at: https://www.timesunion.com/projects /2024/ police-chases-database /.
If we knew that a third of all airplanes that departed from an airport were going to crash, or that 7000 airline passengers were going to die in a ten-year span, we would do something in response to such alarming statistics. Highspeed chases should soon be considered a relic of the past. The days of Bonnie and Clyde escaping across state lines no longer exists. With surveillance technology, including drones, GPS, On-star, license plate readers, traffic light cameras, Ring cameras, cell phone triangulation, etc., very few suspects can escape.
While there has been research into police pursuits, no national standards have been established. To improve policy and practice around this high-risk activity, the National Highway Traffic Safety Administration (NHTSA) and the Department of Justice's Office of Community Oriented Policing Services (COPS Office) partnered with the Police Executive Research Forum (PERF) to develop vehicular pursuit guidelines for police departments and sheriffs' offices. The resulting 144-page report contains sixty-five recommendations across six topics: agency philosophy and policy standards; the role of a supervisor; pursuit interventions, pursuit alternatives, and technology for managing risks; post-pursuit reporting; training; and community engagement. For my purposes, the most important advisement found in the report is that law enforcement agencies should adopt a strict pursuit policy (stricter than that adopted by the Hardin County Sheriff), to wit:
We recommend that pursuits should take place only when two very specific standards are met: (1) A violent crime has been committed and (2) the suspect poses an imminent threat to commit another violent crime.
If those two conditions are not met, agencies need to look for alternatives to accomplish the same objective. You can get a suspect another day, but you can't get a life back. We believe policy, training, and supervision should all support the core value of policing: the sanctity of human life. (Emphasis added).
Vehicular Pursuits: A Guide for Law Enforcement Executives on Managing the Associated Risks, supra at ix.
Hardin County did have a written policy for allowing pursuits, but Deputy Volentine violated it when he continued his pursuit without authorization. Such a requirement for supervisory authorization and continuing consent is supported by extensive research in this arena. The necessity of oversight from a third-party supervisor appears to be universally accepted as a foundational element in all pursuit policies. Supervisors should be actively involved in managing the risks of a vehicle pursuit regardless of whether the supervisor is nearby in the field or in the watch commander's seat many miles away. A supervisor serves as an important check and balance on the officer's decision to initiate, continue, or discontinue a pursuit and can be critical in identifying the point at which the risks of the pursuit begin to outweigh the need to apprehend the suspect.
C.Lum and G. Fachner, Police Pursuits in an Age of Innovation and Reform. Alexandria, VA; International Association of Chiefs of Police (September 2008).
If law enforcement agencies presently wish to reduce their exposure to liability, they should adopt policies that further restrict high-speed chases, educate their officers about such policies and the reasons behind them, and strictly enforce adherence to such policies. This would then result in our roads becoming less dangerous to innocent occupants of the vehicles being pursued, other motorists on the road, and pedestrians. Officers themselves would benefit since more than one out of every hundred U.S. law enforcement officers who die in the line of duty lose their lives in high-speed vehicle pursuits.
Hill, supra at 14.
While the Hardin County Sheriff's Office had a written policy for this Court to review, it is one of hundreds of law enforcement agencies in this state. As of 2008, according to the U.S. Bureau of Justice Statistics' 2008 Census of State and Local Law Enforcement Agencies, our state had 389 law enforcement agencies which means that there could be 389 different pursuit policies in this state, each of which could confer varying degrees of discretion to initiate a police chase. Many police agencies however have no formal policy to control when officers are authorized to initiate or continue a high-speed chase. It is my contention that, given the risk to our citizens, sovereign immunity should not be granted any agency which has no formalized policy to control high-speed chases. The alternative would incentivize agencies to eliminate or never create such policies, leaving all pursuit decisions to the sole discretion of the officers.
I ask the General Assembly to enact and implement a statewide policy to both protect the lives of our citizens and to remedy the present legal conundrums associated with all the varying police agency policies, determinations of the extent of officer discretion, and whether or not sovereign immunity precludes an injured or killed motorist from making a financial recovery.
A statewide pursuit policy is not a novel concept. In 2022, the Indiana Law Enforcement Training Board (LETB) created a statewide policy which established "uniform statewide minimum standards for vehicle pursuits" that "must be incorporated into the policies, procedures, rules, and/or general orders of all Indiana law enforcement agencies, offices, and departments."
R2022-13; Resolution to Establish a Uniform Statewide Policy on Minimum Standards for Vehicle Pursuits.
Between the guidance this Court has offered through its opinions and the reasoned and experienced input of our law enforcement officers, our state is more than capable of crafting pursuit polices that truly reflect the values of Commonwealth which balance the need to enforce our laws and apprehend wrong-doers with the safety and security of all of our society.
I therefore urge the General Assembly to work with our state's law enforcement agencies, the Kentucky Justice and Public Safety Cabinet, and any others who might offer valuable input, to formulate a statewide police pursuit policy to better ensure the safety of our citizens and provide strict, easily understood, guidance to officers when they are faced with making quick decisions as to when to pursue a suspect in an automobile and when to terminate the pursuit.