High-speed police chases and section 1983: why a definitive liability standard may not matter.

• Author: Finarelli, Joseph

Although the standard least likely to be adopted by the Supreme Court provides a more feasible alternative, there are other practical solutions

IN 1990, Sacramento police officer Murray Stapp flipped on his overhead lights and yelled to two boys who rode by the scene of an altercation on a motorcycle. Sheriff's Deputy James Smith, whose windows were up, could not hear what Officer Stapp said. Motorcylist Brian Willard and his passenger, Philip Lewis, both riding without helmets, squeezed between the officers' cars and drove off. A high-speed pursuit ensued, which ended tragically with Smith's car striking and killing Lewis.

Currently a debate rages in the U.S. federal circuits regarding the appropriate standard of liability for police officers in highspeed pursuit cases. The Ninth Circuit, which applied a "deliberate indifference" standard in Lewis v. Sacramento County,(1) chose not to follow the "shocks the conscience" standard apparently established by the U.S. Supreme Court in Rochin v. California(2) and reaffirmed in Collins v. City of Harker Heights.(3)

The remaining circuits have established a broad range of positions on the standard of conduct that will subject an officer engaged in a high-speed pursuit to liability for violating a victim's due process rights. Two circuits have agreed with the Ninth that deliberate indifference to or reckless disregard for a victim's due process rights suffices to expose officers to 42 U.S.C. [sections] 1983 liability.(4) Four circuits have explicitly held or strongly suggested that the officer's conduct must "shock the conscience" to be actionable.(5) Two circuits, without setting a definitive standard, have determined that even grossly negligent conduct does not create a Section 1983 claim.(6) The Seventh Circuit has held that, absent a Fourth Amendment violation for unreasonable methods of arrest, injuries from police pursuits do not create constitutional deprivations.(7)

Having granted certiorari in Lewis, the Supreme Court will perhaps end the confusion soon. A strong possibility exists, however, that even the stricter "shocks the conscience" standard will have little, if any, effect on the amount or character of police pursuit litigation. [EDITORS' NOTE: The Supreme Court decided the Lewis case after the preparation of this article. See postscript to the article.]

There are three important questions. First, what standard of liability should apply when judging the conduct of police officers who, by initiating or sustaining highspeed pursuits, personally injure suspects or innocent bystanders or enable the pursued individuals to do the same? Second, what impact, if any, will the chosen standard have on police pursuit litigation in federal and state courts? And third, do different approaches to the liability question present opportunities for more structured, more realistic and more effective adjudication of police pursuit claims?

POLICE OFFICER LIABILITY UNDER 42 U.S.C. [sections] 1983

Passed in the wake of the Civil War, the Civil Rights Act of 1871, later codified at 42 U.S.C. [sections] 1983, sought to guarantee consistent and fair compensation for state citizens denied their constitutional guarantees by the acts of their own state officials.(8) Section 1983 subjects "every person" acting under "color of any statute, ordinance regulation, custom, or usage of any state" to liability for depriving a citizen of that state of "any rights, privileges or immunities secured by the Constitution and laws." In 1961, in Monroe v. Pape, the Supreme Court stated that Section 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions."(9)

The often shallow pockets of individual officers, however, led many plaintiffs to assert claims against the municipalities that employed the officers. The Court in Monroe refused to include municipalities in the definition of "persons" subject to Section 1983, a determination expressly overturned in 1978 by Monell v. Department of Social Services of New York,(10) which held that municipal liability arose only when officials' execution of a government policy or custom inflicted the injury to the victim who could not recover under a respondeat superior theory.

The difficulty of proving that a government custom has caused an isolated accident in a random police pursuit has forced plaintiffs to pursue individual liability against the pursuing officers. High-speed pursuits inherently involve action taken by officers under the color of state law to enforce the laws of their state or municipality. The establishment of a "deprivation" of a federal constitutional right has proved more troublesome, however. In Harlow v. Fitzgerald,(11) the Supreme Court determined that government officials are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." A plaintiff may have to "demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited."

With the dispute in the circuits and the lack of clarity from the Court on what level of behavior violates a police pursuit victim's constitutional rights, a qualified immunity defense offers a safe haven to most officers who argue that the rights they have allegedly violated are not "clearly established." Often, then, if no "clearly established right" is shown, an officer may obtain a dismissal on a motion for summary judgment or for failure to state a claim.(12)

SHOCKS THE CONSCIENCE STANDARD

1. Development

   The shocks the conscience standard traces its origins to 1952 and Rochin, a case of overzealous and unconstitutional collection of evidence. Police directed a doctor to force a vomit-inducing solution into Rochin's stomach, which produced two morphine capsules that served as the primary evidence in Rochin's conviction. Reversing that conviction, the Supreme Court found that the officers' behavior was "conduct that shocks the conscience." In essence, the Court merely reasoned that evidence obtained in this manner violated Rochin's 14th Amendment due process right against coerced confessions.

   Even within the universe of evidence exclusion cases, however, the "shocks the conscience" standard has suffered serious erosion. Rochin arguably resulted from the Supreme Court's reluctance to extend the Fourth Amendment protections against unreasonable search and seizure to state law criminal cases. The Court's true sentiment resurfaced in Irvine v. California(13) in 1953 when it refused to follow Rochin, opting instead to affirm a conviction based on the authority of Wolf v. Colorado.(14) In Wolf the Court had held that "in a prosecution in a state court for a state crime the 14th Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure."

   The death knell for Rochin in evidence exclusion cases came in Mapp v. Ohio.(15) In Mapp, the Court applied the exclusionary rule to state proceedings and held that the Fourth Amendment barred the use of illegally obtained evidence, without resort to a "shocks the conscience," 14th Amendment due process analysis.

   In 1981, in Parratt v. Taylor,(16) the Court signaled a limited retreat by holding that "nothing in the language of Section 1983 or its legislative history limited the statute solely to intentional deprivations of constitutional rights." Speaking for the Court, Justice Rehnquist concluded that labeling the negligence presented in that case as a violation of the 14th Amendment would "almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under the color of law into a violation ... cognizable under Section 1983." Although the Court did not sustain the "shocks the conscience" standard of liability, it failed to announce a clear definition of what level of culpability would support a Section 1983 claim.

   In 1986, the Court dashed any remaining hope that simple negligence could expose state officials to Section 1983 liability. In Daniels v. Williams,(17) the Court overruled Parratt to the extent that it stated "that mere lack of due care by a state official" may "deprive" an individual of a 14th Amendment right. Despite rejecting simple negligence as a basis for a claim of constitutional deprivation, the Court specifically reserved the question "whether something less than intentional conduct, such as recklessness or `gross negligence' is enough to trigger the protections of the due process clause."

   It has been alleged that Collins v. City of Harker...