DennisBeaverDecember 28, 2004 (Original publish date) • By Dennis Beaver

On Nov. 10 of last year, Vicki McCarty and her husband were shopping at the Hanford Wal-Mart at about 10 in the evening.

“I had just finished paying, while my husband was looking at a display of guitars on the wall next to the checkout counter. Suddenly, I head someone loudly yell, ‘He’s running.’ The next thing I knew, I was picked up and virtually thrown to the next register, and then pushed or forced down on the floor. My head was rammed into something and I was a bit dazed. I did not know it at that time, but that little trip to Wal-Mart brought us face to face with a parolee who had violated his terms and was about to be sent back to prison,” Vicki wrote in an e-mail.

Oops, Sorry!

“Within seconds I met a very nice Hanford police officer in a somewhat unexpected way,” her e-mail continued. “He was chasing the parole violator, and in the process, stepped on my leg, and then he and several other law enforcement officers ran out the Wal-Mart exit, chasing and finally capturing the felon.

“In the meantime, Wal-Mart called 911, and within minutes a group of very competent paramedics were examining me. At that time I declined medical treatment — but I was pretty shaken up, as you can well imagine — and then on the way home I realized that I really was injured in the fall.
“Over the next three weeks, I was in a lot of pain, have had medical treatment, and admit that even today I am a bit nervous about going into department stores or other large shopping facilities.
“Hospital ER and X-ray bills came to several thousand dollars, and I wonder just who, legally, is responsible for them? I am not blaming Wal-Mart, of course, but wonder, what does the law say about any liability of law enforcement or the probation department?”

Immunity Defense

When Vicki’s e-mail came in, I immediately phoned her and discovered an extremely articulate woman whose well-written e-mail was so visual, it had me feeling sorry for her. But at the same time, the way she told the story was so funny. I learned that she suffers from multiple sclerosis and her husband is a cancer patient. Yet, Vicki generously spent time with me on the phone, and if laughter is the best medicine, it is I who felt better after speaking with my long time reader.

If you’ve read of accidents that occur in high speed chases, then you may also have heard the term, Governmental Immunity from Suit. This concept is literally ancient — going back hundreds of years to the days of real kings, knights and round tables. Simply stated, unless the “sovereign” (the king or queen) permits suit against the kingdom, no such claims will be allowed. The reason behind the rule had nothing to do with fairness, but what was practical.

As my long time colleague, Attorney Alan Daniel, who is a deputy city attorney here in Bakersfield, puts it, “Even if the king’s soldiers trampled your crops, no one in their right mind was going to file a claim against the crown — even if you won, just how would you collect! But the rule changed over the centuries, and now governments routinely permit claims to be filed when their employees harm someone or cause property damage,” Alan explained.

This issue of Immunity from Suit is deeply established in attempts to catch fleeing felons.
“Based upon the facts of your reader’s case, law enforcement had not just the right, but the duty, to apprehend this person who had violated the terms of his parole. As the injury took place during that effort, both the city of Hanford, Hanford Police Department and the Parole/Probation Department would in most cases be absolutely immune from civil suit, in my opinion,” Mr. Daniels concluded.

My reader was directed to the Victim Witness Program in Kings County, and an application was filed to help take care of her medical expenses. That was the correct approach to take, and it is expected that all of her expenses related to this incident will be paid for by the state of California, or more directly, by a fund set up out of fine and restitution orders.

After all she had been through, Vicki told me that this experience had given her a new appreciation for what it means to be a victim of violent crime, even if this was a relatively minor incident.

“I know it sounds a bit corny, but I now have a great deal of sympathy for real crime victims — and just how frustrating the experience can be. I was not seriously hurt, fortunately, but after this, you look at your husband, family and friends through different eyes. This — or worse — can happen to anyone. It has also given me a much greater appreciation for the tough job that law enforcement has.”

And she added something else. With a sense of humor that is remarkable, Vicki said, “Say, now that I think of it, those police should thank me for slowing the guy down!”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.