Sovereign immunity: City to argue for dismissal of Mitchell crosswalk case
Artist Gerry Mitchell, one year after the crosswalk incident.FILE PHOTO BY WILL WALKER
In November 2007, wheelchair-bound pedestrian Gerry Mitchell was tossed into the street when he was struck in a West Main Street crosswalk by an Albemarle county police cruiser, then ticketed by Charlottesville police. At a hearing set for Friday, May 21, attorneys for the City and the ticketing officer, Steve Grissom, plan to ask a judge to toss the $850,000 suit Mitchell filed last year.
"Maintaining a police force is a governmental function, and accordingly, the city is immune from liability for a police officer's negligence in and intentional acts during performance of his duties as a police officer," writes the city's attorney, John Zunka, in the motion to dismiss, which cites the legal concept of "sovereign immunity"–- the idea that government can do no wrong, at least legally. Zunka did not return a reporter's calls for comment.
Mitchell's attorney, Richard Armstrong, however, says he is confident Judge Thomas Wood–- appointed to the case when Charlottesville Circuit Court Judge Edward Hogshire recused himself–- won't let the city and officer Grissom off the hook so easily. The suit, filed in Charlottesville Circuit Court in June 2009, alleges negligence, malicious prosecution, and intentional infliction of emotional distress.
"We think [sovereign immunity] is an outdated concept that goes back to when we were underneath the king," says Armstrong. "We hope that the court will see through it in this case."
As for Grissom, Armstrong says that a timeline of the incident created by Charlottesville police and revealed in discovery provides evidence of a conspiracy between Grissom and county officer, Gregory C. Davis. That timeline, Armstrong says, reveals that Grissom and Davis visited Mitchell together in the UVA Emergency Room, where Grissom issued the ticket.
"When does that ever happen?" asks Armstrong. "We think it's evidence that they were working together."
Mitchell, an artist who has AIDS, was already suffering from an array of serious health issue when he was struck, and he contends that his woes worsened as a direct result of the crosswalk incident, requiring multiple hospitalizations and surgeries and interfering with his life's bright spot: his ability to paint.
If Judge Wood denies the city's motion, the case will move toward trial, something Armstrong expects would be months away. County officer Davis, also named in Mitchell's suit, is represented separately and is not part of the upcoming hearing.
20 comments
Settling this case would not encourage others...
This is cut and dry.. the officer made a mistake (it could have been any of us) The crime came in when he tried to worm out of it and that is why the city should pay.
If the city tries to do more underhanded tricks to get out of responsibility in the future they should pay then also.
Lawsuits should be fought on a case by case basis and the frivolous ones should be fought to the death to protect the taxpayers.
BUT, the city needs to do ALL the math and recognise that even if they got it dismissed they would still lose. Thyt need to consider things like google choosing a city for its high speed internet program... Do you think they want to come here when our government runs over and hiv victim in a wheelchair (on film) and then tells him "too bad, soveriegn immunity"?
I agree that whoever made the decision to use this defense be fired and those that went along with it not reelected.
Perhaps Mr Mitchell would be happy with 100k cash and 2k a month for life. Let the negotiations begin.
I wish them luck with the "sovereign immunity" claim.
It never woked for any cop I had to file suit against. :)
IMHO, it's basically a ploy to bankrupt plaintiffs. They will milk the sovereign immunity defense and other defenses for 5 or 6 years. When the judge finally sets a jury trial date, the city will be kncoking on Mitchell's door and begging to settle out of court.
And needless to say, anybody who can't see something as big as a man in a wheelchair before hitting them with a 4,500 pound vehicle doesn't need to be driving on the same roads the rest of us drive on.
I remember that Gasbag. If I'm not mistaken, the comment section below the Hook's online report of that story was also where a lot of people started to form a negative opinion of a commenter calling himself "Sick of the Local Rambos." He seems to have gone away, but he unfortunately spawned a few imitators who to this day still hijack threads with similar rants about "cop shoppes" and ad nauseam repetitions off topic personal stories.
The problem is that the city may just prevail under soverign immunity because Mr. Mitchell may not have the funds to appeal.
If this happens then it really shows that Charlottesville is a low down no class town.
fu I think Szakos and Huja are worth keeping on board. I watch them and they really do actually look at data in front of themselves and think. Huja is a good planner and he makes sure to get a good picture before making decisions. Brown, Norris, and Edwards have an opinion and don't like to let the facts get in the way of what they have already decided. Those three have agendas and they want those agendas no matter what guidelines need to be ignored.
This world class city needs to consult a PR firm on this one.
I mean, seriously. If ever a case screamed out "SETTLE ME", this is that case.
City of Charlottesville gives ticket to man in wheelchair in crosswalk who was struck by County of Albemarle police car.....
wow. Just wow.
I think a lot of people had already formed negative opinions of local cop shoppe cars vs pedestrians shortly before Mitchell was hit by a cop shoppe car. Namely, back when a cop shoppe Jeep almost ran over two pedestrians in a crosswalk. The pdestrians were arrested and jailed after yelling "slow the F*** down!" at the cop.
IMHO, it was nothing more than "contempt of cop". The nerve of taxpaying citizens shouting out for a cop to slow down! :)
Wizard: Yes it's exactly so...I'm a humbug.
Dorothy: You're a very bad man.
The city claims Sovereign Immunity and 'is immune from liability for a police officer’s negligence'. Wow, this is quite an astonishing assertion. I hope you win your case, Gerry, because from what I can determine, based on what I know of the facts, you have been treated poorly from the moment of the unfortunate accident.
The Pope also claims Sovereign Immunity when priests can't keep their hands off alter boys.
Charlottesville population 50,000 people
16,0000 households
about 50 bucks per household to give this man a little better life.
just do it.
Whoever decided that the city to use this defense should be fired. Period.
This "world class" city has been embarrassed enough by the youtube video going semiviral.
They will waste a couple of hundred thousand on legal fees and then settle for another couple of hundred thousand and then spend another couple of hundred thousand trying to restore the cities image.
The city should have
1) Investigate the cop for conspiring to get out of responsibility by giving this poor guy a ticket.
2) disipline the cop that gave the ticket.
3) apologised publicly to Mr. Mitchell and accepted responsibility.
4) asked him for a reasonable number and negotiated a reasonable number that would have included Mr. Mitchell and the cop shaking hands and Mr. Mitchell accepting the apology (because its genuine)
5) put this behind the city so we as residents don't have to be laughed at on jay leno and youtube.
Fire the person that made this decision.
agarn, cop shoppes can't establish the reputation of being an easy mark when sued. They have to fight lawsuits tooth and nail for years to keep from establishing themselves as an easy mark. Otherwise, every Tom, Richard and Harry would be suing them every other day.
The second line of thought, as I mentioned above, is the fact they fight tooth and nail for years hoping they can bankrupt plaintiffs. Unless a person has an attorney working on a contingency basis, the plaintiff will run out of money long before a city or county will.
Gasbag, good points, but surely his attorney is working on a contingency basis? And the cop shoppe can afford to pick its battles and not look like an easy mark.
They ran over a guy in a wheelchair and then gave him a ticket while he was in his hospital bed. This is one they should let go. The damage caused by fighting this one is not worth it. No one's going to be trying to get run over by a cop while in their wheelchair as a result of them settling this lawsuit....
"Fire the person that made this decision." I think that "person" was City Council. They have been having a lot of closed door meetings recently. That would be Norris, Szakos, Edwards, Brown and Huja. Which of those do you want to let go and which to keep?
I hope there is no settlement; I want it to play out. It will be interesting as to what will be proven in court.Settling out of court only serves to keep the truth from the public. Government should be held fully accountable for taxpayers' money - how much is spent and why.
"...Charlottesville is a low down no class town."
If you can judge a locality by the way its citizens are treated, then Mr. Mitchell's treatment to date gives one ample grounds to form a negative opinion of the local (so called) public servants.
It must take a handful of Ambien for John Zunka to sleep at night.
The City needs to settle this tout de suite, apologize like big kids are taught do, and then walk away very quietly. To do anything else is to court disaster. This is a potential PR nightmare that's going to blow up in their faces.
You just don't treat people this way. You don't. There's no way that the people living in the city and county should stand for this.
agarn, your post is well stated. It would be refreshing to see a government entity - taxpayer supported (obviously) as they all are - do the right thing for one of our fellow citizens for once. But I won't hold my breath. Obviously they don't care, or they would have run through your list on their own by now and taken the initiative. The only thing I could add, at the moment, would be...
6) Remedial driving 101 for the cop that struck the wheelchair. And, honestly, it should be back to basics starting with a tricycle, plastic streamers from the handle bars, and a little bell that can be jingled; all to help induce a sense of spatial awareness and geared to not overwhelm the current level of driving ability(ies?). Then let him peddle up 29 north during rush hour, on the trike, and he'll never take his eyes off the road again. Later you could move up to an actual car and introduce the concept of a steering wheel, but not in Virginia; probably out on one of the dry lake beds in the west, where there is plenty of open space, and where you could see a wheelchair coming from miles away.
Sadly, the cop that ran into the wheelchair, to the best of my knowledge, is still out on the road and we can all rest assured that one day if he runs someone else over, the powers-that-be will squawk sovereign immunity. And it is my personal suggestion that if someone cannot see a wheelchair in broad daylight, then they really have no business carrying a firearm. Scary stuff! Look both ways if you cross a street, and if you see a cop's car (taxpayer owned transport) coming, step way back from the curb because they might just sovereign-immunity-you.
quote: "Gasbag, good points, but surely his attorney is working on a contingency basis?"
I have no idea whatsoever.
But I do know very few attorneys take cases on a contingency basis nowadays. Even less if a city, county or state agency are the defendants. Cop shoppes have unlimited taxpayer funds when fighting plaintiffs.
To go one step further, cop shoppes will spend $500,000 in legal fees while fighting a plaintiff over a period of 6 to 7 years.... only to then settle out of court 7 years later for another $500,000 when a judge sets a jury trial date. The taxpayers would be money ahead if the cop shoppes took the first $500,000 and simply settled the lawsuit. But why do they care when they are not footing the bill?
Sad to say, I don't think there are any keepers on City Council right now.
8Yeah, I miss the ole boy! :)