Police Pursuits and Civil Liability

FBI Law Enforcement Bulletin,The, July, 2001 by Chris Pipes, Dominick Pape

As many as 40 percent of all motor vehicle police pursuits end in collisions [1] and some of these result in nearly 300 deaths each year of police officers, offenders, or innocent third party individuals. [2] Because many police pursuits result in accidents and injuries, agencies and officers become subjects of civil lawsuits. Initiated in state or federal courts, these lawsuits have resulted cumulatively in case law that directs law enforcement agencies to develop pursuit policies. The U.S. Supreme Court recently issued a ruling that has changed the threshold of negligence before an agency or officer can be held liable, which will impact police agencies across the United States. [3]

Because of the critical nature of police pursuit situations, chief executive officers (CEOs) of law enforcement agencies must establish an appropriate policy governing the actions of their personnel during such incidents. In doing so, CEOs first must consider the constraints and allowances set forth by state and federal statutes and court decisions applicable within their jurisdiction. They must create a policy that balances the need to apprehend offenders in the interests of justice with the need to protect citizens from the risks associated with police pursuits. Additionally, the policy must protect the financial interests of the community based upon potential losses of taxpayer dollars following successful litigation against the agency as a result of law enforcement actions deemed inappropriate by the courts. Adopting a policy similar to that of another agency does not easily resolve the CEO's dilemma because a variety of philosophies exists among the pursuit policies of law enforcement agencies. U.S. fed eral courts have reviewed numerous police pursuit cases using different standards of conduct and the courts routinely have reviewed the agency's pursuit policy before rendering a decision. The policy, or lack of same, could impact the outcome of a civil action.

LITERATURE REVIEW

The published literature regarding police pursuit is voluminous, and individual studies focus on a variety of elements associated with the issue. [4] Some experts categorize pursuit policies as either restrictive or judgmental where, in the former case, the officer may only pursue given the existence of certain well-defined criteria, or, in the latter, where the officer may decide whether or not to pursue based upon certain factors. [5] Other experts prefer to label judgmental policies as discretionary, and further subdivide restrictive policies into two categories--restrictive and discouraging. [6] They define a restrictive policy as one that places only certain restrictions on the judgments of officers, and a discouraging policy as one that severely cautions against or prohibits pursuits except in extreme circumstances. [7]

One study discussed four factors that police officers and supervisors must consider when making the decision to pursue or to continue or terminate pursuit: the nature of the violation (e.g., traffic offense, felony); the characteristics of the area (e.g., freeway, commercial, residential); traffic conditions (e.g., congested or not congested); and weather conditions (e.g., wet or dry). [8] Among both officers and supervisors, the nature of the offense represented the most important variable involved in the decision to pursue, followed by the level of traffic congestion. [9] The study focused on the attitudes of the officers and supervisors independent of the actions that those individuals actually took in observance of policies in conflict with their personal beliefs. [10]

Other research describes the attitudes of the public with regard to police pursuit and some conclude that the public overwhelmingly supports pursuits for serious criminal offenses. [11] The data also suggest that public support for police diminishes proportionate to the seriousness of the offense, especially when the public is educated about the dangers of pursuit. [12]

Another study used data gleaned from interviews with prison inmates that attempted to describe attitudes toward police pursuit from the offenders' perspectives. [13] These findings concluded that the average individual who makes the decision to flee is a male in his mid-20s, and that few differences exist between the thoughts going through the minds of those offenders who eventually escaped and those who law enforcement captured. [14]

Lawsuits stemming from police pursuits allege civil rights violations pertaining to Title 18, Section 1983, U.S. Code. Traditionally, suits allege violations of the Fourth and Fourteenth Amendments. Police pursuits relate to the Fourth Amendment as to the citizens' rights against unreasonable seizures. The Fourteenth Amendment relates to citizens' right to treatment by governmental entities that is fundamentally fair.

DISCUSSION

Relevant Court Cases

Brower v. County of Inyo

The respondents in this case, which involved the use of police roadblocks to stop a fleeing vehicle, "allege the police acting under color of law, violated Brower's Fourth Amendment rights by effecting an unreasonable seizure using excessive force. Specifically, the complaint alleges that respondents placed an 18-wheel truck completely across the highway in the path of Brower's flight, behind a curve, with a police cruiser's headlights aimed in such fashion as to blind Brower on his approach." [15] The U.S. Supreme Court ruled in favor of Brower, which led many police agencies to restrict the use of roadblocks to stop fleeing vehicles. In its brief, the U.S. Supreme Court identified to the law enforcement community its interpretation of a seizure as it pertains to police pursuits. Brower v. County of Inyo states a seizure occurs "when there is a governmental termination of freedom of movement through means intentionally applied." [16]