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March 6, 2020

Generally speaking, under American law a police agency is entitled to sovereign immunity (or governmental immunity) from lawsuits. You can’t sue the king or his servants, as the idea goes, without the king’s permission.

Depending upon jurisdiction, however, there is an exception carved out: an individual officer may be sued (but not the agency) for the negligent performance of a ministerial duty. Ministerial duties involve tasks that are subject to instructions, controls, or guidelines; the other sort of duties are discretionary and involve independent decision making. For instance, building a highway would be ministerial, while deciding where the highway goes would be discretionary.

The appellate courts in Kentucky have determined that driving is ministerial. Driving is instinctual and follows rules, specifically the rules of the road. A police officer who drives negligently may be sued for the damages she causes.

But what about driving with lights and siren on, as in a pursuit? Surely that involved lots of independent decision making, right? Actually no, at least not in Kentucky. That’s ministerial because driving in a pursuit is, if anything, even more regulated and subject to controls and guidelines. The courts have decided that a police officer in a pursuit running with lights and siren who negligently collides with a third party is not protected by sovereign immunity and may be sued.

What if the officer hit you while being involved in a pursuit? The old rule, recently rejected by Kentucky’s Supreme Court, was that only the criminal being pursued was liable was negligent. Nowadays, a negligent police officer is responsible for his or her negligence, even in a pursuit.

So you’ve now got the court judgment against the individual officer, does she have to pay it out of her salary or savings? No. Police agencies carry insurance, just like individuals and businesses, and the officers are insureds under that policy.

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This is a blog post, not specific legal advice. No attorney-client relationship is intended or created.