dissenting.
I would take issue with the majority opinion as well as the specially concurring opinion of Chief Justice Thomas for these following reasons:
Initially, under § l-39-104(a), W.S.1977, 1985 Cum.Supp., the Governmental Claims Act grants law enforcement officers absolute immunity, along with other public employees. Thereafter, under § 1-39-112, W.S.1977, 1985 Cum.Supp., the immunity for law enforcement officers is removed. By reason of this withdrawal of immunity, law enforcement officers and their governmental-entity employers become subject to suit for an officer’s tortious behavior while acting within the scope of employment. However, even though the immunity of police officers is removed by § 1-39-112, the Governmental Claims Act, § l-39-107(a), W.S.1977,1985 Cum.Supp., provides for the retention of all common-law defenses. One of those defenses, which is available to law enforcement officers at common law and under our prior opinion, Kimbley v. City of Green River, Wyo., 663 P.2d 871 (1983), is that of qualified immunity. This immunity defense depends upon whether the officer acted reasonably and in good faith at the time and place in question. If the officer was so acting, then, at common law and under our relevant decisions, he is held to be immune. If he was not acting reasonably and in good faith, then he could be held liable for negligence.
The trial court in this case held that the officers were acting reasonably and in good faith — as a matter of law (and the Chief Justice agrees) — thereby making them eligible for protection by reason of their common-law immunity, thus justifying the summary judgment. This is where I part company with the trial court and the Chief Justice. I think that the good faith and the reasonableness of the officers’ behavior under the facts of this case were questions for the jury. This conclusion not only causes me to disagree with the district court and the Chief Justice, but also places me in a dissenting position with respect to the majority opinion.