The plan was for Michael Wayne Jackson and his family to get Red Lobster Dec. 4, 2021 after the father finished his night shift doing road construction and got some rest. But Michael needed a haircut, his wife Janice said, and despite her offers to lend her car or have other family members drive him, he insisted on taking the bus to the barbershop.
Meanwhile, Houston police were chasing five teenage suspects who had allegedly stolen a woman’s car from a grocery store parking lot. Officer Orlando Hernandez and his partner were driving between 80 and 100 mph through the city’s Sunnyside neighborhood to assist in the pursuit, the Houston Chronicle reported.
According to the crash report, Hernandez was driving down Reed Road “at a unsafe speed for the roadway conditions” and “performed a faulty evasive action to avoid stopped traffic” when he drove onto the sidewalk and hit Jackson, who was walking. The 62-year-old died on impact.
His wife didn’t find out until the next day. Janice Jackson had also been the victim of a car crash six months earlier that left her wheelchair bound with lasting memory loss, she said.
She and the couple’s adopted daughter Ky’lee lost not just a father, husband and brother, but a crucial caretaker and provider, Jackson told KERA News in an interview.
“I didn't know what I was going to do. That was our main income,” she said. “Not just an income. My baby's daddy that she looked up to — the only daddy she ever knew — was not going to be here no more.”
Janice Jackson and three other plaintiffs sued the city of Houston the following year over fatal police chase crashes. U.S. District Court Judge Kenneth Hoyt ruled that sovereign immunity — which protects Texas and its cities from lawsuits for monetary damages — didn't protect Houston in this case, and Jackson's claims couldn't be dismissed.
“There are too many factual uncertainties for the Court to determine, at this stage, that Officer Hernandez did not endanger life or property,” Hoyt wrote. “After all, Officer Hernandez 'endangered life' to such a degree that Jackson is now dead, and HPD itself determined that Hernandez was “traveling at a[n] unsafe speed.”
But last month, a panel of three U.S. Fifth Circuit Court of Appeals judges overturned Hoyt’s decision. That opens the door for the city to successfully move to dismiss Jackson’s case under the protection of sovereign or governmental immunity.
The Houston Police Department ultimately put limits on its vehicle pursuit policy. The department did not respond to KERA's questions about Jackson's case and the aftermath of HPD's internal changes. A grand jury declined to indict Hernandez on criminal charges for the fatal pursuit in 2022.
Lawyers and legal scholars say immunity for government actors makes it highly unlikely for anyone suing government officials to get their day in court — even in the face of the tragedy police chases can inflict on innocent bystanders and drivers.
But Janice isn’t done fighting, she said — not for herself, but for the Jacksons’ now 15-year-old daughter Ky’lee, who lost her best friend.
“I want justice,” Janice said. “She wants to be a veterinarian. She wants to go to college. They need to pay.”
The different shades of immunity
Qualified immunity protects individual government officials like police officers from liability, while governmental immunity protects the local government they work for, like a city.
That doesn’t mean officers are given carte blanche on the job. They’re not granted immunity if they’ve violated a “clearly established” constitutional right or law that a reasonable officer would have known about.
In federal police chase lawsuits, plaintiffs uninvolved in the pursuit commonly allege an officer violated their Fourteenth Amendment protection against the deprivation of life, liberty or property without due process of law.
But police chase lawsuits look different at the state level.
The Texas Tort Claims Act states local governments and their employees are immune from civil liability for their actions, but they lose that immunity if they act outside their discretion or not in good faith. Legal experts say that standard is difficult to prove.
“If I'm like, say, City of Houston, every single time I'm going to be arguing that my employee would be shielded because they acted within their discretion and in good faith,” said Claire Andresen, a criminal law professor at the South Texas College of Law in Houston.
Law enforcement and other proponents of qualified immunity say the principle prevents deterring police from doing their inherently dangerous jobs or going into police work in the first place.
But in practice, overcoming the qualified immunity defense often requires proving an especially egregious violation of a person’s constitutional rights, said Jennifer Laurin, a criminal law professor at the University of Texas School of Law. And when suspects defy police orders during high-speed chases, it’s much harder to prove an officer in that situation is intentionally violating anyone’s rights — bystanders included.
“Use of force against individuals who are, to any degree, resisting the commands or physical restraints of police is frequently found by courts to occupy what the Supreme Court has called the hazy middle ground of constitutional law,” Laurin said.
Texas’ track record
The Texas Supreme Court took up two police chase lawsuits last year: Powell v. City of Austin and Rodriguez v. City of Houston. In both suits, police officers crashed into uninvolved drivers during high-speed chases.
But justices ruled that, at most, the officers from both cities were negligent, not reckless, and the cities were protected from suit by governmental immunity. Plaintiffs must prove officers in emergency situations acted with “conscious indifference or reckless disregard for others safety” to succeed in a lawsuit filed under the Texas Tort Claims Act.
The two plaintiffs, Noel Powell and Ruben Rodriguez, declined to comment on their lawsuits.
While justices acknowledged the danger of high-speed chases and the need for some path under state law for uninvolved drivers and bystanders to receive compensation if they’ve been harmed, no such change came from the Texas Legislature during this year’s session. Lawmakers told KERA News there’s been little to no pressure from the public or within the Capitol to pass legislation dealing with pursuits.
Qualified immunity may even discourage litigants from pursuing lawsuits at all. The family of Anthony Welch and Dee Baker Welch sued the city of Dallas and Gabriel Cerna soon after Cerna — an alleged capital murder suspect — crashed into the Welches’ car while fleeing from police in January.
Anthony Welch died at the scene. His wife Dee was in the hospital until she died from her injuries three months later.
The city of Dallas twice pleaded governmental immunity. Both parties began discovery and depositions.
But six months later, the Welch family dropped their suit. Quentin Brogdon, their attorney, said it was because it’s become increasingly difficult to pursue tort claims against police officers in Texas, as evidenced by recent Texas Supreme Court decisions.
Justices ruled in April that a Killeen man whose car was hit by a police officer on the way to a 911 call can’t sue unless he proved the officer violated state emergency response laws, not just recklessness. The high court cited the Powell decision in its opinion.
Attorneys told KERA News then that the Killeen case highlighted the high bar plaintiffs must meet under state law to successfully sue for crashes that take place during emergency responses like police chases.
“I have come to the opinion that it is nearly impossible, if not impossible, for a victim in a police pursuit chase, at least, to prevail,” Brogdon said.
Other avenues for recourse?
Lawsuits aren’t the only way people can get compensation when they’re harmed during police chases. The state’s Crime Victim Compensation Program can cover costs like medical expenses, attorney fees and lost wages for crime victims, including those impacted by police chases — but according to a program staffer, that’s only if the person or property was hit by a suspect and they filed a police report.
For cases where police officers do the damage, that falls on the city. Dallas, Houston and others allow people who’ve been injured or had their property damaged due to a city employee’s actions to file a claim and potentially have their costs reimbursed.
This process didn’t work for Janice Jackson, however. Her attorney submitted a claim to the city of Houston’s legal department a month after the crash that killed her husband, requesting a $5 million settlement.
The department said in a letter the city is protected by governmental immunity, and therefore Houston is not required to pay the claim. Later that year, Jackson sued.
A staffer with the claims department told KERA News that determining whether Houston’s right to governmental immunity is waived is part of the claims investigation process.
Jackson relied on an online fundraiser to pay for Michael’s funeral expenses, she said.
“Why you making us pay for a funeral?” Jackson said. “We didn't hit him. We didn't kill him. They should have automatically said, 'well, we're going to pay for Mr. Jackson's funeral.’ They didn't do that. So yeah, I'm going to fight it to the end.”
Got a tip? Email Toluwani Osibamowo at tosibamowo@kera.org and Caroline Love at clove@kera.org.
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