The Denver-based federal appeals court directed a trial judge on Tuesday to further analyze whether a Kiowa County deputy and the sheriff’s office may be sued for a fatal vehicle collision.

The Colorado Governmental Immunity Act generally shields government entities and public employees from lawsuits for their actions, but there is an exception for injuries caused by emergency vehicles. Immunity applies when they exceed the speed limit during a pursuit, but only if the driver is “making use of audible or visual signals.”

Emergency drivers may still lose their immunity if they “endanger life or property” and if their warning equipment does not include certain features, including a light “mounted as high as practicable” on the vehicle.

Last year, U.S. District Court Judge Charlotte N. Sweeney concluded that the plaintiffs who were injured in a 2022 vehicle crash outside of Lamar had alleged Deputy Jacob Marlow was driving a vehicle that did not comply with those conditions. Therefore, governmental immunity did not shield him or his employer from being sued.

However, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined that Sweeney had cut the analysis short. While she looked at whether the lights on Marlow’s vehicle were compliant, she neglected to address his use of a siren.

Based upon the language of state law, “we agree the Colorado Supreme Court construes the statute to permit a responder to use either lights or siren,” wrote Judge Carolyn B. McHugh in the Sept. 8 order. “Because the district court made no findings as to whether Marlow activated his siren, we remand for it to do so.”

Dale and Anna Murphy of Oklahoma filed suit on behalf of themselves and Dale’s mother, Donna Murphy, who was the only vehicle occupant killed in the May 29, 2022, crash. That night, around 9:10 p.m., the Murphys alleged they were turning left from Powers County Road 7 onto Highway 50, a divided, multi-lane roadway with a 50 mph speed limit.

Simultaneously, Marlow, who lived in Prowers County but was on-call as a deputy in Kiowa County, was speeding to assist with a vehicle-on-deer collision about one hour away. He was driving close to 95 mph and hit the Murphys’ car at around 76 mph. The only warning lights were allegedly flashing just above his license plate.

The Murphys sued Marlow and the sheriff’s office for negligence, alleging Marlow drove at a “grossly excessive speed” and lacked “appropriate lights and siren.” The defendants moved to dismiss based on governmental immunity.

“Plaintiffs have failed to demonstrate that Deputy Marlow did not use his lights or siren and have not shown that he was driving in a manner that endangered life or property,” wrote the defendants’ lawyers.

Sweeney decided Marlow had forfeited his immunity because the warning lights on his truck were not mounted at the highest possible place on his vehicle as the law required. Moreover, the oversight could have made a difference.

“While Plaintiffs acknowledged seeing Deputy Marlow’s lights moments before the collision, the inadequate emergency lighting package on the black truck could have contributed to the accident,” she wrote. “The Court finds that the Plaintiffs sufficiently ‘demonstrated a possibility’ that Deputy Marlow’s actions could have caused their injuries.”

The defendants appealed to the 10th Circuit, arguing that Marlow was still immune so long as he was operating his siren. They also disputed Sweeney’s findings about the lights, contending she referenced a photograph that was “neither reliable nor sufficient.”

The 10th Circuit panel agreed in part. Because immunity is available when an emergency responder uses lights or sirens, wrote McHugh, Sweeney needed to also determine whether Marlow operated his siren. If not, he would lose immunity under Sweeney’s analysis for the lights.

The panel otherwise found Sweeney’s evaluation of the lights contained no errors warranting reversal.

“The district court properly considered the post-collision photos of the Ram,” wrote McHugh. “Based on those photos, the district court found there were no lights installed on the Ram as high as practicable.”

The case is Murphy et al. v. Marlow et al.