he may please the court federal tort claims act waives the sovereign immunity of united states for torts a federal agents when private persons and similar or like circumstances would be liable when unique governmental functions form the basis of the tortious conduct olsson requires us to choose a state standard that best resembles the liability imposed on private persons not the principles of liability imposed on state or i mean this point he's in response to olson this circuit you franco distinguish e differences between the two as pointed out in the district court guards of the city as a result in view frank of the united states was permitted to use the state law privilege of reasonable force when effectuating a lawful arrest in this case the government in this case the state law privilege alleged by the government permits operators of emergency vehicles transportation use it immunity right and that privilege i submit i well the the state law privilege are i would like to  i'll get i'll get to the to that at that issue whether it is a privilege or a bit and immunity in a bit here your honor to this to the extent that the government relies on the partial waiver of sort of an immunity found in provide either way it is our position that officer roach an awful officer roach is conduct fell below any standard of care that this court articulate and therefore the district is there a a private person analog that we need to reach the supreme court and olson and requires us to begin the search for private person out of analog to satisfy the statutory requirement that in like circumstances in indiana tony the supreme court defined in like circumstances as something that shares the same character of conduct as a private person the legal fiction we must create is you find a private person who is engaged in the same character of conduct and then ask the question what proof what principles of liability does th state apply to those persons simplistic answer to that question is just a distracted driver under the facts here is just a distracted driver  that takes a wide right turn and causes an accident under this analog a negligent standard would apply an officer roach or was required to exercise reasonable privilege relies on the texas tort claims act i think that maybe that might have to be the standard under olson because if if this court is to rely on a state immunity then it's our position that that would be in violation of the holding and holds so if that if that's a private person analog that we could  these facts now granted that does not take into consideration the officers duty as a as an employee of the federal government but so in that and so there may be another in injures an innocent rd party under this analogue a citizen a citizen's arrest is permitted under texas law and that's in article fourteen one of the texas court of criminal procedure private person can it would be justified under texas penal code nine point zero five in in harm to these patients and so the texas transportation code has a privilege for authorized emergency vehicle operators and that's where this whole recklessness conscious effort has been discussed it  whether agent roach a slowdown for safe operation when he entered that that intersection between highway to e one and old an old military road although none of the numerated privileges and five or  a private operator of an emergency vehicle to proceed past a red light or stop signal after slowing down for safe operation texas cases seem to turn on briefing and i must say that issue factual issue seems a little bit too narrow to maybe but maybe both sides can explain to me whether he has brakes is an optimally at a factual matter really dispositive or whether he was reckless  sorry and so and in a lot of the cases where the privilege is granted it's an instance where the officer applied the brakes turned on the siren and had the blue light go all right so as regards those factors what's present in this case well in as in regards to the lights and sirens yes the officer lights going on well i mean it doesn't that answer the question now we can argue about how much he slowed him when he tapped them a whether he actually applied them sufficiently to slow the vehicle to in some a to eat it to some extent but the lights on the in the video looks like his brake lights go on as he approaches well that i think that's a disputed fact as to whether down the road the video is grainy it's very hard it is i tried real hard to understand how it went i mean it seems to focus on a vehicle at the time down the road it seems to be officer roach as vehicle but as the magistrate judge is reporting recommendation that you just don't know whether that's just the tail light or the brake light but i  really want to emphasize here is that the officer experienced tunnel vision and still while experiencing tunnel vision keeping his eye on the perpetrator he turns right acknowledges that he did not see your car in your current car he does acknowledge that he did not see the clore until the moment of impact and that's consistent with what my client says my client contributed nothing to this accident it's the court martin to tar on behalf of the department of justice this case addresses where the united states may be liable for acts of a border patrol agent who while chasing a suspected drug smuggler ran into another vehicle under the federal tort claims act we looked to the law of the place where the incident occurred here it's undisputed that's texas under texas law the texas transportation code privilege imposes liability when emergency responders act with quote reckless disregard for the safety of others now reckless disregard has a very particular meaning under texas law according to the supreme court of texas it means an individual has to engage in quote and this is from the martin decision an act that the operator knew or should have known posed a high degree of risk of serious injury and then in that same decision the supreme court of texas provided further gloss on what exactly that means in contrast to for example recklessness in other areas of the law it says a quote momentary judgment lapse or a quote near failure of judgment cannot as a matter of law is to end it as a matter of state law established reckless disregard the district court in this case properly applied those state law principles the border patrol agent was per person being a suspect and critical here many split nd decision to turn right when he had the right away albeit the allegation is that he was speeding but he allegedly turned to wyatt and crashed into mr martin as his vehicle at most and i cannot emphasize that enough that is a momentary judgment lapse it is not reckless disregard as a matter of law under texas state law i but i want to get into that just a bit more on your understanding of texas law in this oh instantaneously almost always bar that from liability with one copy of your honor judge up with the answer is yes and that's if the right turn was made in response and almost immediate to another vehicle crashing as in this case coming across the road and crashing and so as long as we know that the decision was made as a split nd response i think the speed itself is irrelevant under the amarillo decision under it's crazy to take a sharp right turn around i'm out an hour or ninety miles an hour without looking to see who's there but that craziness is going to be done in a very short time frame the thought processes that lead to and your interpretation  all may be exactly correct but it does seem to allow for an awful lot of very unfortunate conduct on carbon law enforcement indeed judge topic but in this very particular narrow context the supreme court of texas has crystal clear momentary judgment lapses are not the privilege applies in that particular scenario and i'd also point out that there is no suggestion that the border patrol agent in this case was going one hundred miles an hour  there is the video itself which absolutely grant is not crystal clear and far from it shows that he slowed down there's the magistrate judge who while disagreeing with the united states on the ultimate conclusion at page four o two of the record on appeal indicated that he slowed down when he was making the turn even if there's a there was a dispute although we don't think there is a dispute about whether the break brake lights themselves or any question that those lights whatever they are on the border patrol vehicle i heard your friend on the that perhaps it's not clear that is even the border patrol vehicle but your honor prior to this morning's oral argument i thought it was uncontested that this is a government owned vehicle and that the lights but not the sirens were on and the reason why the siren is important often in the cases we cite and mr martinez cites it's because when you're entering an intersection against a red light you don't ordinarily have the right of way and so that's why in those cases it's critically important in the courts look to whether the vehicle the government on a vehicle slowed down or whether the lights were on whether the siren was on to give warning to the other drivers  who are otherwise merely proceeding on their way here the situation is critically different because as we heard in the opening whether the sirens were on not wouldn't have made a difference to mr martinez's actions he was simply sitting  innocently at the intersection at a stop light so the critical inquiry here is whether the instantaneous split nd decision to make a right turn while pursuing a suspected drug smuggler who had as we know from the video immediately crashed which is why he made that split nd decision and is reckless under texas law and the city of emerald versus martin case is crystal clear on that point momentary lapses  judgment while in some individuals views might be viewed as sort of to use judge southwards term crazy another time context in this particular context because of the importance and the need for emergency this response is to under the supreme court of texas in terms to make split decision split nd decisions even if it is going to create create some sort of risk for others there is no liability in that particular scenario i don't effect show that the person being chased was  out of his car the question already occurred was running before the turn was my your own of the video is yes there is testimony was art was made to chase somebody on foot not to keep up with somebody in the car i just want to be clear that that is absolutely the border patrol agents testimony that he had tunnel vision on the individual after exiting the vehicle but this is situation where it was twenty seconds or a minute or five minutes later this was a very compressed timeline where the fleeing the ickle crashed into the ditch i think there's testimony that the door was open before the crash even  finalized and then he exited the vehicle and that was when there was a split nd decision so here we're talking about mere seconds at most i'm happy to answer any other questions the court has but otherwise we ask for the district honour's your honour's i would like to address the issue raised about whether this was a split nd decision the video if you look at that since our agent roger had a clear line of sight when he when the perpetrator popped his head out into onto to anyone i think if you can bring back this the scenario even that might mean question the nd half hour what that means by the way a very quick decision so you say he actually had eight or nine seconds i'm just trying to find out without an awful lot of other when do you say th this thought process is for the age it should have could have would have begun prior to that turn and why you're saying it's a check into what was occurring at the age check it out mark that you're that helps that should guide the court when he should have training and experience to deal with what would happen if anything you know he's going high speed chase or potentially injury needs to be aware of how to react to that so i got that but we're talking about the decision to make that turn that hitter clock when we start the clock on that decision in your mind that decision to make a turn which it seems to me and you can argue differently would not occur until you saw the suspect running that direction which was the reason to make the turn i think that submit to the court that that would be the time when this became an emergency so that would place it i think at about eight seconds your honor with the remaining time so you're saying that's the moment when he would have i guess that would be and let me put it another way is that the moment we would have become obvious that making the turn would put him in a closer proximity to the suspect that he was chasing yes your honor i submit to you yes because the trajectory of the car regardless of whether he jumps out or not ands up at that place and so he's able to circumvent and kind of tactically find and get to the car if he turns on old old military with the remaining time i should i think it's informative to look at the distinction and this was briefed down at the lower court but look at the distinction between hartmann and martin remember martin