No. 28479 -- John D. Sergent, as Administrator of the Estate of David Sergent, deceased v.
The City of Charleston, West Virginia, a municipal corporation; William H.
Hart and Greg White, police officers of the City of Charleston; the City of St.
Albans; J. H. Crawford, police officer of the City of St. Albans; Terryonto
McGrier, a convict; and Jerome Thomas, a convict
Starcher, J., dissenting:
I dissent to the majority's opinion because I find it does not properly represent
the record.
The record indicates that the defendant police officers attempted to use a drug
informant to capture defendants Terryonto McGrier and Jerome Thomas in the course of a
drug transaction at the Cutlip's Motor Inn. The area around the Inn was secured by at least
8 police officers in other vehicles. When McGrier and Thomas didn't show up, the officers
moved the informant to a Days Inn for “safety reasons” -- but didn't bother to secure the area
with any police backup.
By coincidence, the police officers discovered McGrier and Thomas in the
Days Inn parking lot. Without any assistance, the officers attempted to capture the criminals.
A shootout ensued, and the criminals fled. Racing at speeds as high as 80 miles per hour,
with flat tires that had been shot out, the criminals raced onto highly congested roads in the
middle of the afternoon. The police officers knew -- and so testified during their depositions
-- that criminals fleeing a hot pursuit “will strike pedestrians with an automobile in order to
stop the police from chasing them.”
The police officers later testified that they never discussed terminating the
pursuit of McGrier and Thomas. The two criminals passed cars on the left, and when
presented with oncoming traffic, the police officers saw them pass traffic by leaving the road
and passing on the right, on the berm. David Sergent, age 19 years, -- wearing blaze orange
and riding home from an afternoon of hunting -- was struck from behind while riding his bike
on the berm.
Amazingly, none of the defendant police officers stopped to render aid.
Instead, they continued their pursuit, radioing the dispatcher to send an ambulance.
The majority opinion refers to an affidavit proffered by the plaintiffs written
by Sergeant Chester M. Miller, III, of the Maryland State Police. Sergeant Miller gave an
opinion, based upon his professional experience, that the actions of the defendant police
officers
. . . departed from the standard of professional police conduct,
so as to constitute gross negligence, and wanton and reckless
conduct on their part, which proximately contributed to the
incident causing the death of David Sergent, to include, but not
necessarily limited to:
. . .
4. Their high speed pursuit of the fugitives . . . into the
community and surrounding area of Marmet, without breaking
off the same prior to reaching the congested area; and by
otherwise failing to utilize accepted national standards for
bringing a fleeing suspect's vehicle to a stop.
5. Failing to abide by the Charleston Police Department's own
policies and procedures pertinent to:
a. Planning and executing their apprehension of the suspect
Jerome Thomas;
b. The protection of life during vehicular pursuit;
c. Breaking off vehicular pursuit for the public safety; and
d. Rendering aid to an injured pedestrian.
6. Their failure to abide by and adhere to standards of
professional police conduct, such as those contained in the
International Association of Chiefs of Police, Inc., Model Policy
on Vehicular Pursuits.
The majority characterizes this affidavit as failing to point to specific tortious conduct and
“wholly insufficient to support a negligence action.”
The majority opinion states that
police pursuits “are inherently dangerous, absent any negligence, to the
pursuing officers, the pursued suspects, drivers of other automobiles, and pedestrians.”
___ W.Va. at ___, ___ S.E.2d at ___ (Slip op. at 14-15). I agree with this proposition
wholeheartedly -- and it is exactly the reason that police pursuits are to be
done with restraint, and, if at all possible, avoided.See
footnote 1
Sergeant Miller's affidavit indicates
that commonly accepted standards of professional police conduct mandated that
the pursuit by the defendants should have beenterminated, and that the failure
to terminate the pursuit was reckless. The record reflects that the police officers
in the instant case had a subjective realization that people often die in hot
pursuits. The criminal suspects had already shown a disregard for life by indiscriminately
shooting at the police officers in the hotel parking lot; it was reasonably foreseeable
that they would harm an innocent third party to slow the police down. Police pursuits
are inherently dangerous -- and if the police choose to expose the public to that
dangerousness and high likelihood of harm, they and the agency by whom they are
employed should be held responsible like any other individual.
The record in this case makes
it patently clear that the police have a difficult job. I have no doubts about
it. But the Sergent family has just as difficult a task -- facing life without
their son. A jury could conclude that David Sergent's death did not have to happen
had the defendant police officers followed their own departments' regulations,
and the standards of conduct followed by police officers nationwide, and terminated
the pursuit. Two violent drug dealers might have escaped that day -- but an innocent
young man might still be alive.
I therefore respectfully dissent.