By Tom Jackman
Washington Post Staff Writer
Thursday, August 13, 2009
A Fairfax County judge ruled Wednesday that a Fairfax police officer who hit and killed another driver last year is not entitled to immunity in the civil suit filed by the dead woman's family.
The ruling by Fairfax Circuit Court Judge R. Terrence Ney was a significant legal victory for the family of Ashley McIntosh, 33, the teacher's assistant whose car entered a Route 1 intersection on a green light and was broadsided by then-Officer Amanda R. Perry. McIntosh was thrown from her car and killed.
Perry, 23, was not in court for Ney's ruling, and she is no longer a Fairfax police officer. She resigned in March after police alleged that she had been embezzling from the department by falsifying time and attendance records while she was on administrative duties in the year after the Feb. 12, 2008, crash. She has not been charged in that case.
Perry was found not guilty of reckless driving in a criminal trial last year in Fairfax County General District Court. But a host of new facts, disclosed Tuesday during a hearing on Perry's attempt to invoke "sovereign immunity" for her actions, helped convince Ney that she can be found liable for simple negligence at a civil trial scheduled for February.
Among the new disclosures:
-- Testimony showed that although Perry was initially dispatched to a fistfight in progress, callers promptly alerted police that the participants had gone back inside a Beacon Hill area grocery and, then, that the incident wasn't a fight at all but the capture of a shoplifter. But Perry continued to drive on Route 1 at more than the 45 mph speed limit without checking for updates on the incident, and she failed to turn on her siren before running a red light at Boswell Avenue and slamming into McIntosh's Toyota Corolla.
-- Perry told the judge that she considered the fight call an emergency because someone could have been seriously hurt. But she acknowledged that she did not use her emergency lights or siren for several miles en route to the call, in violation of Fairfax police policy. She said she could not get her siren to function in the moments before reaching Boswell Avenue.
-- A veteran police officer who trained Perry testified that Fairfax policy dictates that if emergency equipment such as a siren is not operating, officers are to pull over immediately and excuse themselves from the call. Perry did not do that.
-- Perry was about six miles from Beacon Hill when she was dispatched to the event, but dispatchers did not use the radio to tell her that the "fight" had ended or that it was not a fight after all, because the radio was being used heavily by officers responding to accidents in a freezing rain. Instead, dispatchers sent text messages to Perry's computer, which Perry testified she didn't see because she was driving.
Virginia law exempts police from obeying traffic laws when responding to an emergency. But Ney ruled: "Her belief that it was an emergency, simply put, does not make it an emergency. It just does not."
Officer Marshall Thielen, president of the Fairfax Coalition of Police, watched the entire hearing Tuesday and Wednesday.
The union leader said after Ney's ruling, "This case is of great importance to our members and could set precedents in how we recommend to our members to carry out our jobs."
The county pays for the legal representation of officers and former officers sued for actions taken on duty and for any damages awarded in court. Perry's attorney, David J. Fudala, declined to comment after the hearing.
McIntosh's parents, John McIntosh and Cindy Colasanto, sued Perry on behalf of their daughter's estate. "Obviously I'm happy," Colasanto said after the ruling, "and if there is any justice, this is a step in the right direction."
On the afternoon of the accident, Perry testified that she was parked in Grist Mill Park in the Mount Vernon area when a radio call came in for a fight in progress outside the Giant supermarket at Beacon Hill Mall. Perry said she would take it, and checked her mobile computer for details.
The first note in the computer, entered at 4:45 p.m., said there were "2 w/m [white males] hitting a b/m [black male] at the entrance to the store." A second note, entered at 4:46 p.m., said, "Caller lost sight, last saw them all going into the store."
Perry said she considered one person being beaten by two people an emergency. She said that she didn't see the second note but that it wouldn't have changed her mind, because the fight could have been continuing. "I believed I needed to get there very fast and efficiently," she said.
A third note, posted at 4:56, said the incident was a "shoplifting apprehension . . . subject in custody." Perry said she wasn't checking her computer screen because she was driving. The crash happened at 4:57 p.m. Perry was traveling between 38 and 44 mph as she entered the intersection, and her foot had been off the brakes for about two seconds before the impact.
Fudala tried to invoke sovereign immunity in Perry's defense. Under sovereign immunity, government employees can't be held liable for doing their jobs, unless they are grossly negligent.
Because Ney found that Perry is not entitled to sovereign immunity, plaintiffs' attorneys Thomas Curcio and Roger Creager have to prove only simple negligence to win the case.