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Sunday, January 19, 2020

Officer acted responsibly in breaking up soccer fight, justices find


By Scott Holland | Jun 17, 2019

General court 08

BEAUMONT — A Texas appeals court has affirmed a lower court’s ruling stemming from an incident at a high school soccer game.

Kevin Blackburn worked for the Livingston Police Department as a Livingston High School resource officer. Iram Alejandro Hernandez, a soccer player, sued Blackburn over the officer’s use of pepper spray, but a Polk County district court granted summary judgment in Blackburn’s favor. Hernandez appealed that ruling to the Texas Ninth District Court of Appeals. Charles Kreger wrote the opinion issued June 13, Justices Hollis Horton and Leanne Johnson concurred.

The encounter took place Jan. 31, 2014, at Livingston played Jasper High School. According to court records, the teams began fighting after a foul, and a uniformed Hernandez ran on the field and attempted to punch an opposing player. Blackburn said he warned the players that he would use pepper spray before doing so. Hernandez maintained the other player was choking him, struggled to break free and didn’t see or hear Blackburn before he used the spray.

In moving for summary judgment, Blackburn invoked the affirmative defense of official immunity as a protection from personal liability. Hernandez countered by saying “Blackburn failed to establish the requisite elements of official immunity,” according to Kreger, such as “Blackburn did not prove he was performing discretionary duties within the scope of his authority, or that he acted in good faith.” As such, the panel had to determine if there are disputed material facts.

The panel explained that defendants invoking official immunity must establish they were performing a discretionary function. Kreger wrote that the video corroborates Blackburn’s account he, as the only officer on scene, used verbal commands to break up several fights, including the one involving Hernandez, and that he also physically tried to separate the players before using pepper spray, all of which support his argument that he was exercising judgment.

Hernandez also said Blackburn wasn’t acting within the scope of his professional authority. Although Blackburn was off duty, his supervisor testified his work on the soccer sidelines was part of his regular assignment. Regardless, the panel said, entering the field to break up fights constituted “discharging a duty generally assigned to him” as an SRO.

The panel further agreed Blackburn acted in good faith by attempting to break up the fight so Hernandez and the other player wouldn't further injure themselves. Blackburn specifically testified he tried to physically prevent the other player from choking Hernandez, but was ineffective.

Hernandez retained an expert, Capt. Danny Walker, who cast doubt on Blackburn’s decision process lasting seven seconds before using pepper spray, but Kreger said the good-faith standard doesn’t penalize police officers for making split-second decisions. The panel said Walker viewed the incident “in a vacuum” and “fails to address risk and needs assessment,” such as the danger Hernandez was in or what alternative methods Blackburn might have considered and rejected.

“Blackburn conclusively established he acted in good faith,” Kreger wrote, “and when the burden shifted, Hernandez failed to present evidence that no reasonable officer could have believed using pepper spray under the circumstances was warranted.”

The panel affirmed the trial court’s judgment.

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