Sovereign immunity: City to argue for dismissal of Mitchell crosswalk case
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"We think [sovereign immunity] is an outdated concept that goes back to when we were underneath the king," says Armstrong.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.