Moab • Seventh District Judge Don Torgerson will hear a motion for summary judgment in a lawsuit against the Moab Police Department filed by attorneys for Gabby Petito’s parents.

If granted, the case would essentially be dismissed — an outcome that plaintiffs’ attorney Brian Stewart said would not be surprising given Utah’s governmental immunity clause that shields police officers from liability in cases of assault or battery, even when they result in death .

Petito was murdered by her boyfriend Brian Laundrie in Wyoming in August 2021. Two weeks earlier, the couple was involved in a domestic violence incident in which Moab police failed to arrest one or both of them, in violation of state domestic violence laws and department policy . They separated the two overnight to give them time to calm down.

In November 2022, Joseph Petito and Nichole Schmidt, through Salt Lake City-based Parker & McConkie, announced that they would file for $50 million trial in case of death against the Moab Police.

Attorneys for the Moab Police Department filed the motion for summary judgment last April, and Parker & McConkie filed an opposition in response in July. Torgerson will hear the motion on Wednesday, Nov. 20 in Moab.

In their motion for summary judgment, MPD’s attorneys argued that Utah’s governmental immunity law “precludes Moab (Police Department) from being held liable for Laundry’s brutal crimes.”

There is a three-part test to determine whether the act applies, they wrote in court filings, to assess “whether the activity being conducted is a governmental function, whether governmental immunity was waived for the particular activity; and whether there is an exception to that exception .A simple application of these factors confirms that plaintiff’s claims must be dismissed.”

According to lawyers on both sides, the Utah Supreme Court has held in several cases that immunity applies in cases of assault, battery and even death “even if the assault or attack occurs as a result of the negligence of the state or state agent.”

Attorneys for Moab Police also argue that “even without” the Government Immunity Act of Utah, the claims against MPD should still be dismissed. They claim that the plaintiffs have “repeatedly” invoked another statute, the Domestic Abuse Act, which they claim says: “A peace officer cannot be held liable in any civil action brought by a party to a domestic violence incident for making or failing to make an arrest or for issuing a failure to issue citation.”

They also point out that Moab police separated the couple for the night and that Petito’s murder happened two weeks later, hundreds of miles away.

Parker & McConkie attorneys argued in court documents that Utah’s governmental immunity law applies only to state entities and not municipalities.

Stewart told The Times-Independent said it’s possible Judge Torgerson could grant MPD’s motion for summary judgment based on Utah’s Government Immunity Act, an outcome he said “is entirely possible” given how Utah’s highest court has responded to similar cases in the past. If so, they would appeal on behalf of Petito’s parents, Stewart said.

This story was first published by Times-Independent.