Just before midnight on Sept. 16, 2018, Austin police officer Brandon Bender was responding to a welfare check in southwest Austin when he heard gunshots.
When another officer in the area, Michael Bullock, saw a car driving nearby, he told the driver to stop, but the man sped away.
The two police cars began chasing the fleeing driver with authorization from their supervisors, court documents say. Bender, in front, tried to make a right turn to cut off or at least get closer to the fleeing car.
He slowed to turn onto Brandt Road, where a motorist named Noel Powell was waiting at a stop sign in a gray minivan preparing to turn left. Bullock hit his brakes, but he couldn’t stop fast enough to avoid a crash.
Bullock swerved, hit Bender’s car, then slid into Powell’s minivan and hit a tree, according to court documents.
That Austin case and another like it out of Houston were in front of the Texas Supreme Court Tuesday, where the two cities argued they could not be sued for the injuries caused by that crash and a separate collision — and the court’s decision could make it harder for people to sue and win when they’re hit during police chases.
'An unfortunate act'
High-speed chases garnered increased scrutiny in North Texas following the deaths of two people in the span of a month in Fort Worth last year. While internal policies in departments across Texas reiterate the importance of balancing catching a suspect and keeping other drivers safe during a chase, pursuits can often be dangerous and sometimes fatal.
Beyond police department vehicle pursuit policies, state law outlines what government employees like police can or can't get away with on the job under the umbrella of governmental immunity, which protects officers from being found liable in a civil lawsuit or even from being sued altogether.
But those protections don’t always apply if officers are reckless — and the men who sued Austin and Houston police for crashing their cars during chases say they were. The cities, however, say police took enough care to ensure public road safety during their pursuits, and so the officers are immune from being sued for any alleged mistakes made in the process.
The cases could determine whether people can pursue legal action when they're roped into police chases in Texas. It all hinges on whether justices believe the officers’ actions during the chase — like how fast they were driving — were truly reckless or justified mistakes.
The city's lawyers say Michael Bullock was negligent at best — not reckless — because he wasn’t acting carelessly.
“He requested and obtained permission to engage in the pursuit,” said attorney Hannah Vahl. "He was operating his lights and sirens, showing that he cared what happened to other motorists because he was alerting them to his presence.”
Therefore, she said, Bullock is protected by governmental immunity. Even if he did violate the law, first responders are sometimes allowed to do so when responding to emergency situations without being sued, she added.
Powell’s attorney, San Antonio lawyer Geoffrey Courtney, said by following too closely behind Bender during the chase, Bullock was being careless.
Neither side had evidence of how fast Bullock was driving, but the city of Austin’s crash report found Bullock’s “inattention” and “failure to control speed” contributed to the crash.
“He had to be inattentive for an exceedingly long period of time that he is not watching the patrol car in front of him make a turn,” Courtney said.
The force with which Bullock hit Powell’s car, Courtney said, is also evidence of his carelessness.
The court has ruled before that the consequences of a chase — the damage on a vehicle, the extent of injuries — aren’t even evidence of negligence, much less recklessness, Justice Evan Young said. He asked whether this was just an “unfortunate act” of negligence.
“If that’s the case, I completely agree with what you said — that your client was utterly not at fault, doing everything any citizen should do, the thing that could happen to any single person in this courtroom,” Young told Courtney. “And yet, because of the way the law is structured, unfortunately, that person has to bear the cost for the general public of police doing this.”
Split-second decisions
Ruben Rodriguez’s case against the city of Houston also dealt with a right turn gone wrong during a chase.
Shortly after 7 p.m. Jan. 12, 2019, Houston police officer Ricardo Corral and another officer were helping out on a prostitution sting. When the two went to arrest a man — who they suspected was driving a stolen vehicle — he drove away, and officers chased him near Highway 59 South and Beltway 8, according to court documents.
During the chase, the driver made a sudden right turn onto a side street and nearly hit Rodriguez and his passenger, Frederick Okon, in their truck while they sat at a stop sign.
Corral belatedly tried to make a wide right turn onto Forum West Drive, according to Rodriguez’s brief, and missed the turn. The officer steered to avoid a head-on collision but still “smashed” the passenger side of Rodriguez’s pickup.
Rodriguez’s attorneys argued Corral didn’t slow down when making the wide right turn and should have known that making the turn was dangerous, and that proves Corral’s recklessness. As in the Austin case, there’s no evidence of the exact speed the officer was driving, but Rodriguez's attorneys estimate he was driving at or above the 35 miles per hour speed limit.
Justices asked Rodriguez’s attorney whether Corral’s decision to turn was just part of the heat-of-the-moment decision making officers have to make in all pursuits.
“Yes, you have to make split-second decisions,” attorney Robert McAllister said. “But there’s some split-second decisions that you have to make that are much more critical than other split-second decisions.”
Justices warned they didn't want to penalize officers for those decisions — a concern shared by police departments across the state when crafting their internal rules for police chases.
The city of Houston argued there’s no evidence that Corral knew about the potential risk of making the right turn and didn’t care. The fact that he may have been driving at or above the speed limit wasn’t evidence that Corral didn’t care about the safety of Rodriguez and other drivers.
And under similar circumstances, another reasonable officer would have done the same thing, attorney Christy Martin argued. She said that’s why immunity and the legal exception to liability for emergency responders applies.
“We look at the emergency exception as being something that gives extra protection to a governmental entity so that their officers can act in the public good rather than having their executive prerogatives hijacked by litigation.”
Got a tip? Email Toluwani Osibamowo at tosibamowo@kera.org. You can follow Toluwani on X @tosibamowo.
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