State court lawsuits are generally based upon negligence principles. An officer is negligent if she fails to act in a reasonable manner and causes harm to another. Federal court lawsuits are generally brought under 42 U.S.C. § 1983 (federal civil rights statute) which provides that an officer is liable if she acts under color of law and violates another's constitutional rights.
In those situations where the police officer directly causes the injury to a citizen, the officer or her agency can be civilly liable under negligence principles. The most common type of lawsuit arises when the suspect injures a third party uninvolved in the pursuit. Although some states have enacted statutes providing immunity to the officer, other states permit a plaintiff to sue the officer and her agency.
When a suspect is injured by an officer during the course of a pursuit, federal courts require a high degree of culpability before finding the officer liable. In County of Sacramento v. Lewis, 523 U.S. 833 (1998), an officer in pursuit of two suspects on a motorcycle failed to stop in time after the motorcycle crashed and ran over the passenger. The passenger sued the officer under 42 U.S.C. § 1983 claiming that his federal civil rights were violated. The U.S. Supreme Court held the officer could not be held liable unless her only purpose was to cause harm unrelated to the legitimate object of the arrest such that her conduct "shocks the conscience."
In some cases, the tactics utilized by officers during a pursuit can even result in a determination that deadly force was used. For example, in Brower v. County of Inyo, 489 U.S. 593 (1989), the suspect crashed into a roadblock set up by police officers and was killed. The court held that the suspect had been "seized" within the meaning of the Fourth Amendment and that the seizure could amount to deadly force if a jury determined that using the roadblock was unreasonable.
Most police departments have established policies governing high-speed pursuits. The overwhelming majority of these departments permit their officers to pursue any criminal suspect, regardless of the underlying offense. But some limit pursuits to situations where the suspect is known to have committed a violent felony. And a few departments do not permit their officers to engage in high-speed pursuits for any reason.
Virtually all police departments that permit pursuits require an officer to balance the need for immediate apprehension of the suspect against the danger to the public from conducting the chase. The balancing test has been adopted as a nationwide standard for law enforcement.
The need for immediate apprehension is determined by the seriousness of the offense and the danger created by a suspect's actions during the pursuit. The danger to the public has to be analyzed in light of a variety of factors, including the time of day, weather, road conditions, etc. The balancing test requires the officer to process a tremendous amount of information in a short period of time and make split-second decisions that may have life or death consequences.
For example, it is readily apparent that there is a tremendous need to immediately apprehend a murder suspect. However, if the suspect travels at high speed and enters a thick fog bank or approaches a school zone when children are present, the danger to the public may outweigh the need to apprehend. On the other hand, a pursuit of a traffic violator may be safe at 90 mph on the freeway at 4 a.m.
It is certainly easier for officers and their departments to not engage in pursuits. And there's much less liability involved in avoiding pursuits since the police generally do not owe a duty to protect a citizen from criminal conduct absent a special relationship with a particular person.
On the other hand, there is a moral dilemma confronting law enforcement. While it is easy to second guess an officer following a pursuit that ends with tragic consequences, it becomes morally problematic when someone is injured because the police failed to intervene. For example, it is not difficult to find cases where officers have foiled crimes such as rape, robbery, and even murder by initiating a pursuit of a suspect wanted for a simple traffic violation.
Another difficult decision facing police officers is whether to pursue suspected drunk drivers. Some argue that such pursuits are too dangerous because these drivers are already impaired when driving at low speeds. However, this view ignores the fact that drunk drivers, when not pursued by police, kill between 15,000 and 17,000 people every year and injure thousands more. Others would argue that pursuits are necessary to stop the intoxicated driver before he causes injury.
Some argue that all police pursuits should be prohibited because they are simply too dangerous.
But are pursuits really that dangerous? According to recent data gathered by the California Highway Patrol, approximately 22 percent of all police pursuits result in a collision. However, less than 10 percent of these collisions result in an injury to an innocent person in the vicinity of a pursuit. The vast majority of the time it is the suspect who is injured in the pursuit. Studies conducted in other states have reached similar conclusions.
Further, the overwhelming majority (90 percent) of people killed in police pursuits are the pursued suspects. In fact, if you are not a police officer or a suspect, (in other words, an innocent civilian) your chance of being killed in a police pursuit is one in 4 million. To put that in perspective, a civilian is 6.6 times more likely to be struck by lightning than to be killed in a police pursuit.
I believe that a ban on police pursuits will result in an increase in crime. After all, why would any criminal stop when he or she knows the police will not give chase? The way to end police pursuits is not to punish the police, but to punish the criminal. Those who flee from the police should receive significant prison sentences.
On the other hand, injuries caused by situations clearly demonstrating that a pursuit should not have been initiated will only serve to add fuel to the fire for those who want to prohibit pursuits. Even if a department permits officers to liberally pursue criminal suspects, the decision to initiate a pursuit should be carefully considered by the officer. In the end, it is the officer's responsibility to ensure that the risk/benefit analysis is constantly being performed during the pursuit to reduce the risk of injury to the officer and/or civilians.
Steven D. Blades is a member of the Los Angeles law firm Manning & Marder, Kass, Ellrod, Ramirez LLP. Blades served in the U.S. Marine Corps and on the Covina (Calif.) PD. He now defends police officers and public entities in civil suits.
