Vasquez v. Hernandez

• Decision Date: 12 November 1992
• Docket Number: No. 04-91-00405-CV,04-91-00405-CV
• Citation: 844 S.W.2d 802
• Parties: Elijio VASQUEZ & City of San Antonio v. Leonor HERNANDEZ, et al.
• Court: Texas Court of Appeals

Page 802

844 S.W.2d 802

Elijio VASQUEZ & City of San Antonio v. Leonor HERNANDEZ, et al.

No. 04-91-00405-CV.

Court of Appeals of Texas,

San Antonio.

Nov. 12, 1992.

Rehearing Denied Nov. 12, 1992.

Darrell Frank Smith, Darrell Frank Smith, P.C., Dawn L. Carmody, San Antonio, for appellants.

Mike Maloney, Jon A. Hyde, Maloney & Maloney, P.C., San Antonio, for appellees.

Before REEVES, C.J., and BUTTS and GARCIA, JJ.

ON APPELLEE'S MOTION FOR REHEARING

BUTTS, Justice.

This opinion replaces the previous opinion, which is withdrawn. San Antonio police officer, Elijio Vasquez, individually, and the City of San Antonio appeal an interlocutory order denying their motion for summary judgment based on official immunity of the officer. The appellate court has jurisdiction to entertain an interlocutory appeal when the trial court denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state. TEX.CIV.PRAC. & REM.CODE ANN., § 51.014(5) (Vernon Supp.1992). ¹ Therefore, because of the limited appellate jurisdiction of the interlocutory appeal, this opinion addresses only the qualified immunity defense and not the case on the merits. We reverse only the trial court's interlocutory order denying the officer's motion for summary judgment.

Appellees sued for damages because of the death of a family member during a family disturbance where the San Antonio Police Department responded to calls for help. On August 7, 1989, several telephone calls for help, including a "911" emergency call, were received by the San Antonio Police Department. Patrol officer Vasquez responded to the police dispatcher's information regarding a violent family disturbance. He arrived at the scene first, followed by fellow patrol officer Raymond Castillo. The summary judgment evidence shows that both Vasquez and Castillo understood from the police radio dispatch that the suspect creating the disturbance probably had a gun.

Upon arrival, Vasquez saw several people standing on a porch, and he saw the man considered to be the suspect about 30 feet away. The suspect began walking down the driveway toward Vasquez. Officer Vasquez saw a metal object in the man's hand. In his affidavit he states it appeared to be a gun in the advancing suspect's hand. Vasquez got behind the patrol car's trunk. He drew his gun. He instructed the suspect to stop and to "drop the gun" several times. The man kept walking toward him with the "weapon" in his hand, keeping it down and slightly behind him, until he was about eight to ten feet away. Officer Vasquez stated in his affidavit that he had been told the suspect probably had a gun, he saw an object which looked like a gun being carried down by the suspect's side, and the armed suspect refused to obey his order to stop and continued to come toward him. The suspect began to raise his arm, and the officer shot him. It was discovered that the weapon was a screwdriver.

The only question before the trial court in the summary judgment proceedings was whether the officer was entitled to qualified immunity, which is a question of law. Qualified immunity is a recognized defense to actions against law enforcement officers and their government employers. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1992).

A police officer is entitled to qualified immunity if he is acting in good faith within the course and scope of his authority, and performing discretionary functions. Bozeman v. Trevino, 804 S.W.2d 341, 343 (Tex.App.--San Antonio 1991, no writ). Vasquez must establish these elements by summary judgment evidence.

The burden of demonstrating lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against the movant. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). A defendant may move for summary judgment based on an affirmative defense. It is the defendant's burden to prove conclusively all elements of the affirmative defense as a matter of law such that there is no genuine issue of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). The movant defendant must come forward with summary judgment evidence with respect to each element of the affirmative defense. Nichols v. Smith, 507 S.W.2d 518, 520 (Tex.1974). When a defendant moves for summary judgment on the basis of his affirmative defense, he must, therefore, conclusively prove all essential elements of that defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

In City of Houston v. Clear Creek Basin Authority, the supreme court recognized that section (c) of 166a requires the non-movant to define specifically in writing the controverted issues and defects in the movant's proof that would defeat the motion. 589 S.W.2d at 677. Therefore, if the movant in the present case established the qualified immunity defense, the non-movants were required to controvert this by summary judgment evidence. Once the movant has established the right to a summary judgment on the issues presented, the non-movant's response should present to the trial court a genuine issue of material fact that would preclude summary judgment. Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 215 (Tex.App.--Houston [1st Dist.] 1986, no writ). However, the non-movants may not urge on appeal a defense to the qualified immunity defense which was not expressly presented in writing to the trial court.

Discretionary actions are those which require personal deliberation, decision, and judgment, while ministerial actions require obedience to orders or performance of a duty as to which the actor is left no choice. Wyse v. Department of Public Safety, 733 S.W.2d 224, 227 (Tex.App.--Waco 1986, writ ref'd n.r.e.); Esparza v. Diaz, 802 S.W.2d 772, 779 (Tex.App.--Houston [14th Dist.] 1990, no writ).

Appellees contend in the written response that since the officer was not making policy he was not acting in a discretionary capacity and cannot be immune. This argument is misplaced as a response to the motion for summary judgment based on qualified immunity of the police officer. In addition, questions of the officer's individual negligence, raised by appellees, are immaterial when deciding whether the officer was performing discretionary functions. Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex.App.--Waco 1990, writ denied). Therefore, immunity of the officer may exist even when he has acted negligently.

The Summary Judgment Evidence

Ronald H. Rogers, authenticated by summary judgment proof as a law enforcement expert in Texas, stated his opinion based on his study of the police reports, internal affairs department reports, other case documents, and after conferring with Vasquez regarding the events. His opinion was that Vasquez acted within the acceptable, reasonable and lawful parameters of proper police training and conduct. Further, he stated that Vasquez' acts were necessary, justified, and discretionary, and he acted in good faith. In addition, Rogers stated there is no evidence suggesting that Vasquez acted in bad faith. Further, he stated the officer's defensive actions were within the accepted range of reasonable and standard police conduct and training in Texas and the United States. This expert's opinion on the elements of qualified immunity was not controverted.

The evidence established conclusively that Vasquez was acting within the scope of his authority to be present and take police action after responding to the police dispatcher's call for emergency police intervention. Appellees did not controvert the summary judgment evidence that the officer acted in good faith within the scope of his authority.

The facts in the summary judgment evidence describe the officer's actions at the scene. He positioned himself on the other side of his patrol car with his gun drawn; this was the method Vasquez chose to attempt to stop the suspect from continuing to advance on him with a weapon. He perceived the weapon to be the gun he had been told the suspect probably carried. He then used deadly force when he saw the suspect begin to raise the weapon. These were actions which required the officer's personal deliberation, decision, and judgment. The acts were done in the exercise of the officer's discretion and judgment as a matter of law. See Carpenter v. Barner, 797 S.W.2d at 102.

The policy...