dissenting
My difference with the majority is a fundamental one arising from its failure to differentiate between the two distinct types of conduct presented in this case: Officer Conley’s volitional choice to begin his shift by improperly holstering a weapon with the safety off and his later pursuit of a person engaged in criminal conduct. Unlike a public entity, liability of a public employee is the rule rather than the exception. N.J.S.A. 59:3-1a. By blurring the line between the two types of conduct, the majority has swept under the blanket of pursuit immunity, N.J.S.A. 59:5-2b(2), acts the Legislature never intended to insulate from liability. This ease is no different from one in which an officer chooses to begin his shift in a vehicle that he knows has bald tires and no brakes. *189Under those circumstances, his later victimization of an innocent third party during the pursuit of a felon is surely not within the contemplation of N.J.S.A. 59:5-2b(2).
The issue is not whether guns are intrinsically different for immunity purposes. They are not. See Blunt v. Klapproth, 309 N.J.Super. 493, 503, 707 A.2d 1021 (App.Div.) (finding pursuit immunity applicable where third party is shot and injured by person avoiding apprehension), certif. denied, 156 N.J. 387, 718 A.2d 1216 (1998). An officer’s.use of a gun during a legitimate pursuit is insulated from liability by N.J.S.A. 59:5-2b(2) in the absence of willful misconduct. Tice v. Cramer, 133 N.J. 347, 356, 627 A.2d 1090 (1993).
What is not immunized from liability by the happenstance of a pursuit, is an earlier decision to begin a shift with an improperly holstered gun with the safety off. There is no logical nexus between that conduct and the later pursuit. The injury caused by Officer Conley could just as easily have occurred while exiting his vehicle during his shift or entering a restaurant for lunch. To insulate such conduct from liability to an innocent victim by invoking pursuit immunity violates the letter and spirit of that provision.
Moreover, as a matter of policy, allowing the application of pursuit immunity here will not advance the Legislature’s desire that police vigorously enforce the law without fear of liability. This case does not implicate an officer’s split second decision to engage in pursuit. What is at stake is whether the officer was at fault in his earlier handling of his firearm. Although there can be no argument but that Conley’s conduct was the cause of Alston’s injuries, that conduct was unrelated to the pursuit.
In Fielder v. Stonack, 141 N.J. 101, 123, 661 A.2d 231 (1995), we held that “[wjhether the negligent conduct involves the initiation, continuation, or conduct of the pursuit makes no difference: it is immune.” Conley’s wrongful conduct long preceded the initiation, continuation and conduct of the pursuit, and thus falls outside the immunity provided in N.J.S.A. 59:5-2b(2). The majority’s opinion *190overreads the protection of the statute in a way that insulates from liability conduct that is unrelated to a pursuit. That is unfair to innocent third parties. Thus, I would affirm the Appellate Division’s conclusion that pursuit immunity is inapplicable in this case.
Regarding the alternative of good faith immunity, I agree with the majority that N.J.S.A. 59:3-3, as a theoretical matter, applies to a police officer engaged in a pursuit. Fielder, supra, 141 N.J. at 130-33, 661 A.2d 231. The reason for its applicability is obvious: he or she is acting “in the execution or enforcement of any law.” N.J.S.A. 59:3-3. However, because I continue to distinguish, as a matter of law and fact, Officer Conley’s earlier improper handling of his gun from the pursuit, I believe that any good faith analysis would have to focus on that earlier conduct. The problem presented is that N.J.S.A. 59:3-3 only applies where acts are actually done in “execution or enforcement” of the law. Harry A. Margolis & Robert Novack, Claims Against Public Entities, Comment to N.J.S.A. 59:3-3, (Gann 2001); Bombace v. City of Newark, 125 N.J. 361, 367, 593 A.2d 335 (1991). Officer Conley’s negligent conduct in the handling of his weapon earlier in his shift was preliminary behavior unrelated to a law enforcement or execution initiative.
The immunity conferred by N.J.S.A. 59:3-3 is limited, and its dimensions are narrower than the scope of a police officer’s employment or the performance of his official duties and functions. Not every act or omission by a police officer while on duty is immunized by N.J.S.A. 59:3-3. Instead, a police officer is granted immunity only when he is negligent while actually engaged in the enforcement or execution of a law. Generally, the determination of whether an officer is executing or enforcing a law is a question that must be determined by the trier of fact in light of the circumstances. However, the issue may be decided as a matter of law where the evidence is either undisputed or susceptible of only one possible interpretation. That is the case here. Officer Conley’s mishandling of his weapon at an earlier point in his shift is *191simply not the kind of act “in the execution or enforcement of any law” that the Legislature meant to insulate in N.J.S.A. 59:3-3 in contravention of the general rule regarding the liability of public employees.
I would thus affirm the judgment of the Appellate Division and reverse and remand the case for trial at which neither pursuit immunity under N.J.S.A. 59:5-2b(2) nor good faith immunity under N.J.S.A. 59:3-3 may be invoked by defendants.
Chief Justice PORITZ and Justice COLEMAN join in this opinion.
For reversal — Justices STEIN, VERNIERO, LaVECCHIA and ZAZZALI — 4.
For affirmance — Chief Justice PORITZ and Justices COLEMAN and LONG — 3.