Ohio

: The Briefcase

Police emergencies and sovereign immunity

So here’s the situation.  Cop is transporting a prisoner from the Sylvania jail to the Lucas County jail.  Stops at a red light.  Woman coming in the opposite direction makes a left turn, because she has a green arrow for the left turn.  Cop, as noted in appellate court’s opinion, “became confused and proceeded forward into the intersection in violation of the red light.”  Hits woman’s car.  She sues the city.

No brainer, right?  Wrong.  The trial court throws it out on the grounds that the city was immune from liability because the officer was responding to an “emergency call,” and last week, in Rambus v. Toledo, the 6th District affirmed. 

The court hung its hat on Colbert v. Cleveland, a 4-3 decision in 2003 that affirmed immunity for a couple of cops who’d taken off after some guys they suspected of making a dope deal.  “Emergency call” is defined in the statute as

a call to duty, including, but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer.

The Colbert court looked at the three examples provided by the statute and decided that the “inherently dangerous situations” phrase applied only to the latter:  “personal observations by peace officers.”  The court thus concluded that a “‘call to duty’ involves a situation to which a response by a peace officer is required by the officer’s professional obligation.”

This interpretation completely reads the term “emergency” out of the statute.  But while the court’s reasoning in Colbert is suspect, in Rambus it’s downright wretched.  It’s one thing to suggest that police officers pursuing people they believe might have engaged in a drug transaction are responding to an emergency; it’s impossible to see how that term could apply to a police officer who’s merely transporting a prisoner and operating within the confines of regular traffic.  In fact, the court’s holding

because Officer Shirey, in transporting prisoner Franks, was responding to a call to duty as part of his professional obligation, he was, in fact, responding to an “emergency call”

would essentially allow the exception to swallow the rule; virtually anything could be considered as a “call to duty.”

Sadly, Rambus isn’t an isolated case of bad legal analysis; the 8th District came to the same result, in virtually the same fact situation, in 2005 in Rutledge v. O’Toole, and then followed it up this year by holding that an officer merely en route to pick up a prisoner was also on an “emergency call.” 

There are courts which have bucked this trend, as the 12th District did in Burnell v. Dulle a couple years ago, where a police officer had hit a pedestrian while pulling into a parking lot on his way to court to respond to a subpoena.  Even there, though, the court had to do a tap-dance around Colbert, holding that ”it was not Deputy Dulle’s professional duty, but his civic duty, to respond to the subpoena.”

Rambus had argued that the her position was supported by the dictionary definition of “emergency,” which involves “a sudden, unexpected occurrence demanding immediate action.”  That’s unquestionably the definition the legislature had in mind when it passed the statute; if they’d meant the exception to apply to any time the police were responding to any directive, no matter how mundane, they surely would have said so.  The 6th District rejected Rambus’ argument, saying that “we are compelled to apply the definition of ‘emergency call’ as set forth at R.C. 2744.01, not the definition of ‘emergency’ as set forth in the dictionary.” 

In Colbert, the court had to determine what the definition of duty was.  So what did they do?  The looked in the dictionary.

Frankly, a dictionary wouldn’t have been needed.  Colbert, Rambus, and other cases of similar ilk show what happens when courts get so wrapped up in the law that they lose sight of the ordinary meaning of words.  The most troubling part of Rambus is this paragraph:

Rambus argues, without citation to any authority, that “[t]he important characteristic in an emergency call is that the emergency justifies a deviation by the police from the ordinary standard of care, to which they and the rest of the motoring public is obligated to adhere.” Although this is not an illogical argument, it flies in the face of applicable authority and, therefore, is properly dismissed as  meritless.

Rambus’ argument could not have better summarized what anybody with a lick of sense — and without having to suffer through three years of legal “education” — would have interpreted the statute to mean.  But God forbid that somebody actually use logic, instead of “authority.” 

It’s decisions like this that lead a lot of laymen to conclude that Mr. Bumble was right. 

Full post as published by The Briefcase on August 26, 2008 (boomark / email).