Giron vehicle after accident

The vehicle of Walter and Samuel Giron, who died from their injuries after Olathe Officer Justin Hice collided with them on July 3, 2018. Photo from the appellate brief in Giron v. Hice et al.

The town of Olathe and one of its officers can be held liable for the collision deaths of two men in 2018, stemming from the officer's failure to use his lights and sirens for the majority of his high-speed pursuit.

In reversing a lower court judge's decision to dismiss the civil lawsuit against Olathe, a three-judge panel for the state's Court of Appeals last week warned that law enforcement officers subject themselves to liability if they fail to follow the procedures outlined in law for vehicle pursuits.

The court was "simply effectuating the General Assembly’s intent that an officer activate his lights or sirens once he exceeds the speed limit when he is in pursuit of an actual or suspected violator of the law," wrote Judge Sueanna P. Johnson in the panel's July 28 opinion.

At issue is the Colorado Governmental Immunity Act, a 1972 law that bars injury lawsuits against public entities unless certain exceptions apply. The purpose of governmental immunity is to prevent litigation from disrupting governmental services or to deter public employees from performing their duties. Under the law, emergency vehicle drivers may exceed the speed limit and ignore certain traffic regulations when in pursuit of a suspect and be immune from liability.

However, that immunity goes away if an officer does not use "audible or visual signals" in the chase.

In the lawsuit before the Court of Appeals, Officer Justin Hice was monitoring traffic along Highway 50 in Olathe on July 3, 2018, when he spotted a Toyota going in the opposite direction at a speed in excess of 70 mph. Hice made a U-turn and began to give chase, traveling up to 103 mph on sections of road that had speed limits of 45 to 55 mph.

It was undisputed that Hice never turned on his siren during the 35-second pursuit. Hice also sped past multiple drivers with his police lights off. One driver later testified it was "a scary moment" because he would have been rear ended had he not seen Hice coming up "incredibly fast" behind him.

Some witnesses recalled Hice never turned on his emergency lights. Others, including Hice himself, said his lights were on five to 10 seconds before he reached the intersection of Highway 50 and 12th Street. There, Walter Giron and his passenger, Samuel Giron, waited until the Toyota passed them before turning left on Highway 50 into the lane where Hice was in pursuit.

Hice was traveling close to 80 mph at the time he struck the Girons' minivan. Both men in the minivan died and Hice sustained serious injuries.

The Girons' family sued Hice and the town of Olathe. The defendants moved to dismiss under the governmental immunity law. Hice testified he had not turned on his siren because it interfered with his radio and he had a "personal policy" of only turning on his lights after exceeding 80 mph.

After a hearing, Montrose County District Court Judge D. Cory Jackson granted the motion to dismiss.

Jackson noted that several drivers testified they had not seen any police lights on Hice's vehicle, but he called their recollections "clearly objectively incorrect or just vague." Instead, Jackson credited the memory of a former law enforcement officer who was waiting behind the Girons to turn and said he saw Hice's police lights. The judge also observed that while driving at 103 mph "certainly seems fast to me personally," Hice had specific training for high-speed pursuits.

"I find that the light(s) were on for between 5 and 10 seconds prior to the accident, and that this was sufficient time to alert other drivers in the immediate vicinity to take care," Jackson concluded.

The Girons' estate turned to the Court of Appeals, arguing the question was not whether Hice had turned on his lights in time to give the Girons notice, but whether his failure to use lights or sirens earlier contributed to the accident.

"They’re only entitled to immunity while using" lights or sirens, argued attorney Damon Davis to the appellate panel. "Which means if you are not using them, you are not entitled to immunity. The Supreme Court in Tidwell specifically said you have to be using lights and sirens to get immunity."

The Colorado Supreme Court's 2003 decision in Tidwell v. City and County of Denver involved an officer who pursued a suspect's vehicle without using lights or siren. The vehicle ended up crashing into another car, killing one of the occupants. Although the officer himself did not collide with the other car, the Supreme Court found the officer to be in "pursuit" and, therefore, emergency signals were required under the law to alert both the suspect and bystanders.

The appellate panel in the Girons' case attempted to apply Tidwell's logic to the facts of the Olathe pursuit.

"I’m still struggling to find the requirement either from Tidwell or from the statute that lights and sirens have to be active the entire time the officer is speeding," said Judge Jaclyn Casey Brown at oral arguments.

"Suppose there’s a 100-mile chase on I-70 and for the first 25 miles the officer is speeding but doesn’t have any emergency lights or siren on. And then decides for the next 75 miles to put the lights and/or siren on. And at mile 100 there’s an accident," said Judge Michael H. Berger. "Is it your position that the officer and the government forfeit immunity because during that 25-mile period where it could have possibly affected the actual accident, he didn’t have his lights on?"

Davis responded in the negative, adding that in this case, Walter Giron would plausibly have had an opportunity to notice Hice's oncoming vehicle had the lights been turned on farther in advance.

Berger observed that Hice was violating the law by failing to put on his lights or siren while exceeding the speed limit. Winslow R. Taylor III, the lawyer for the defendants, responded that drivers act "unpredictably," in Hice's experience, once police officers turn on their emergency signals.

"That’s the whole point," Johnson interjected. "They were being told that you need to pull over." She pressed Taylor on the propriety of Hice's "personal policy" not to turn on his lights or siren unless he was going 80 mph.

Taylor acknowledged Hice, in his view, would be subject to liability during the time he was speeding and had used no emergency lights or siren.

The appellate panel's opinion rejected that narrower view, instead holding police officers are only entitled to immunity if they activate their lights and siren for the entire time a pursuit exceeds the speed limit.

"For Officer Hice and Olathe to be entitled to immunity, Officer Hice would need to have activated his emergency lights or sirens the moment he exceeded the speed limit during his pursuit of the white Toyota," Johnson wrote. "Officer Hice’s 'personal policy' of deciding when to activate his lights or sirens when he exercises the privilege to exceed speed limits in pursuit of an actual violator of the law does not qualify him for immunity."

Because Jackson used the wrong standard in finding Hice's momentary activation of his lights provided "sufficient time" for the Girons to react, the panel reversed his order and reinstated the lawsuit.

The case is Giron v. Hice et al.

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