The San Antonio Court of Appeals has affirmed a trial court order denying summary judgment to a peace officer employed by a private university based on his affirmative defense of qualified immunity.
University of the Incarnate Word v. Redus (No. 04-21-00115-CV) arose from an altercation between a university police officer and a student following a traffic stop for suspicion of driving while intoxicated. The facts are disturbing and sad but suffice to say that the encounter escalated to the point that the officer shot and killed the unarmed student. The student’s parents brought a wrongful death and survival action against the officer and UIW, alleging negligence and gross negligence. UIW filed a plea to the jurisdiction and motion to dismiss on the basis of governmental immunity. The trial court denied the motion. In 2018, the court of appeals affirmed, and on appeal SCOTX ruled that “private universities do not operate as an arm of the State government through their police departments” and do not have sovereign immunity. Univ. of Incarnate Word v. Redus, 602 S.W.3d 398, 413 (Tex. 2020). On remand, UIW moved for summary judgment based on the officer’s qualified immunity and its derivative qualified immunity as his employer. The trial court again denied the motion.
The court of appeals affirmed. While the Education Code authorizes private universities to hire peace officers and grants immunities to such officers in the performance of their duties, the test for official immunity has three prongs: (1) was the officer’s performance of a duty discretionary; (2) was the performance of the duty within the scope of the officer’s authority; and (3) did the employee act in good faith. Here the parties do not dispute the first two prongs of the test; the sole issue is whether the officer acted in good faith when he shot the student. In order to establish good faith, the movant (UIW) “must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that [the officer’s] conduct was justified based on the information [the officer] possessed when the conduct occurred” (citations omitted). If the movant makes this showing, the respondent (the Reduses) must then offer evidence that “no reasonable officer in [the officer’s] position could have believed that the facts were such that they justified his conduct.”
In its analysis, the court of appeals looked in detail at the officer’s statement about what happened and the transcript of an audio tape that recorded the encounter from the time of the stop to the shooting. The only third party witness testified that he did not see a weapon or anything else in the student’s hands during the altercation. When asked if the student at any time posed an immediate danger of injury or death to the officer, or whether the officer was aware at all times that the student was unarmed, the officer asserted his Fifth Amendment privilege and did not answer, which in a civil action allows a factfinder to make negative inferences. Finally, the Reduses presented a use of force expert, a retired chief of police for the Dallas Independent School District, to the effect that the officer’s use of force was both unreasonable and unnecessary and that the officer had acted unnecessarily aggressively in prior incidents. Under these facts, the court of appeals concluded that the issue of “good faith” was clearly in dispute, so the trial court did not abuse its discretion in denying UIW’s summary judgment motion.
This unfortunate and depressing case should remind us of the painful work the judicial system must do to balance the interests of law enforcement and the public. The issue of qualified immunity has been front and center in the contentious debates about the nature of policing for the past several years, and we expect another discussion to occur in the 2023 legislative session. But the politics of that debate should not blind us to the very real trauma that cases such as this one inflict on the families, officers, and institutions involved. If people can at least agree on that, maybe there will be a path forward to meaningful change that benefits everyone. Or so we can hope.
