Taser Competitor Loses Fight Over Body-Camera Bid

AUSTIN, Texas (CN) — A Texas appeals court ruled in favor of Austin in a dispute over a contract with the company formerly known as Taser International for the provision of body cameras for the city’s police department.

A competing body-camera maker, Utility Associates, sued Austin and City Manager Marc Ott last July in Travis County District Court. Austin resident Bruce Evans later joined Utility as a plaintiff in the lawsuit. Elaine Hart, Ott’s interim successor, was substituted in his place as defendant.

Decatur, Ga.-based Utility’s customers include the Atlanta Police Department, Bexar County Sheriff’s Office in San Antonio and Long Beach Police Department in California.

Austin solicited bids for the provision of body-worn cameras for police in December 2015. The request for proposals contained mandatory technical requirements, which Taser’s bid failed to meet, according to Utility.

Utility claimed its bid met all mandatory technical requirements and was the lowest price offered, at $3 million less than Taser’s bid.

Despite this, Austin awarded the contract to Taser at a city council meeting, as “a result of the illegal and impermissible ‘non-competitive bidding process,’” Utility’s lawsuit claims.

After negotiations, the city council agreed to pay Taser $12.2 million for the body-camera contract.

Utility then won a temporary injunction to preserve the status quo pending a trial on its claims. The injunction barred Austin from performing under the contract with Taser and from cancelling or otherwise terminating the request for proposals for body worn cameras.

Austin then filed an interlocutory appeal and pleas to the jurisdiction, in which it asserted governmental immunity to the lawsuit.

The district court granted the city’s plea to the extent of dismissing all of the plaintiffs’ claims under the Uniform Declaratory Judgments Act, but it denied the plea “as to plaintiffs’ claim under Tex. Loc. Gov’t Code 252.061.” The effect of these rulings was to maintain jurisdiction over only the claims for injunctive relief.

The city then sought to negotiate and execute a smaller, $4 million version of a body-camera contract with Taser through an alternative, direct-purchase arrangement. Utility claimed this was an attempt by the city to circumvent the temporary injunction.

Utility won a temporary restraining order against Austin on Feb. 15, but it has since expired.

Justice Bob Pemberton delivered the March 24 opinion of the Texas Third Court of Appeals, which looked at “the legal principles that define and limit the district court’s subject-matter jurisdiction to adjudicate plaintiffs’ claims.”

He said Utility’s main challenge was “to avoid or overcome the city’s governmental immunity,” which effectively shields a wide range of acts from the civil remedies that would be available if the same acts were committed by private persons.

The judge noted Utility’s equating of the city’s contract award to Taser with other municipal bribery and kickback schemes that have made the news. But he emphasized the rationale for governmental immunity is that the state Legislature, not the judiciary, is best suited to make the judgments as to whether the resources of the Texas government should be spent on defending lawsuits.

“The controlling consideration, in other words, is not the perceived justness of plaintiffs’ professed cause as self-styled ‘corruption fighters,’ but the extent to which broader state policy prioritizes pursuit of that cause through the private civil remedies plaintiffs seek,” the 29-page ruling states.

Justice Pemberton considered Utility’s argument that its claims fall within the ultra vires doctrine and thus do not implicate governmental immunity. The doctrine says immunity does not bar a suit against a government officer for acts done outside the officer’s authority.

He found that Utility did not meet all the ultra vires requirements.

“The above allegations of plaintiffs would implicate the outcome of the city defendants’ determinations, not their legal authority to reach that outcome,” Pemberton wrote.

The appeals court then looked at whether Utility’s claims could invoke a legislative waiver of immunity under Section 252.061 of the Local Government Code, which creates a right of action subject to three requirements.

Pemberton noted that one of the requirements is that only resident municipal taxpayers are authorized to seek the injunctive relief outlined in the statute. The individual plaintiff, Evans, satisfies this requirement, but Utility does not since it is not a resident taxpayer and the contract at issue is not “for the construction of public works.”

“In sum, plaintiffs’ sole claim coming within Section 252.061’s waiver is Evans’s claim seeking an injunction barring the City defendants from ‘performing any aspect of the contract [with Taser].’ And as there is no other available applicable waiver, all of plaintiffs’ other claims—including all claims asserted by Utility—are barred by governmental immunity,” the ruling states.

The appeals court concluded by denying injunctive relief, lifting the temporary stay and dismissing all of the plaintiffs’ claims except for Evans’s claim under Section 252.061.

Utility’s attorney, Peter Barlow, told Courthouse News that Utility and Evans have filed preliminary motions in the Texas Supreme Court for review of the Third Court of Appeals ruling. The plaintiffs also requested that the Texas Supreme Court issue emergency injunctive relief to prevent the city from procuring body cameras from any source while the case is under review.

Austin released a statement on the ruling through its public information office, saying, “We are pleased with the appellate court’s decision. The ruling gives the City flexibility in the way it chooses to implement its Body Worn Camera program, a program identified as a priority for Austin residents, City Council, and the Austin Police Department.”

It also said the city council approved the purchase of 724 body worn cameras for APD through a cooperative buying process.

On Wednesday, Taser announced it was changing its name to Axon to match the name of its line of body cameras. In commemoration of the name change, Axon is offering U.S. law enforcement agencies a free one-year trial of its cameras, software and training.

“We are going ‘all-in’ to empower police officers to more safely and effectively do their jobs and drive important social change by making body cameras available to every officer in America,” Axon CEO and founder Rick Smith said in a statement.

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