Police Pursuits: a Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law - Patrick T. O'connor and William L. Norse, Jr.

• Citation: Vol. 57 No. 2
• Publication year: 2006

Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Lawby Patrick T. O'Connor^* and William L. Norse, Jr.^**

I. Introduction to Pursuit Issues and Law

"In this case, two people lost their lives in a high-speed vehicular police pursuit. While we must resolve the issues presented by the circumstances of this appeal, the legal and social conundrum created by such police pursuits will unfortunately persist beyond our disposition."¹

Law enforcement's need to pursue criminal suspects has existed, in all probability, since the first laws were ever written. From the days of travel by foot, to horse, and now in the age of motorized transportation, however, one thing has become clear: police pursuits can be extremely dangerous. In 2003 there were an estimated 35,000 police pursuits across the united states.² Nearly forty percent of those pursuits, or 14,000, resulted in crashes. Of that number at least half resulted in injuries. Additionally, there were 350 pursuit-related fatalities. Of these fatalities, approximately one-third were innocent bystander deaths.³ A particularly challenging component of the almost instantaneous decisions that have to be made by patrol officers is that pursuits can escalate into a danger zone very rapidly. One study opined that fifty percent of all police collisions occur in the first two minutes of the pursuit, and more than seventy percent of all collisions occur within six minutes of the pursuit.⁴ Thus, fleeing suspects and pursuing officers are inevitably engaged in a potentially hazardous relationship with little margin, or time, to avoid error.

This Article will survey and analyze the current status of the law on police pursuits. Because of the wide scope of the topic, this article will primarily focus on the legal liability associated with law enforcement officers and municipalities for injuries arising out of high-speed pursuits and emergency responses. This Article will also discuss other forces and trends involved in the realm of police pursuit law.

A. The Psychology of Police Pursuits

The need to apprehend suspects in order to maintain a lawful society is obvious. The manner and method of apprehensions, especially in cases of automobile pursuits, is however, an object of criticism and disagreement for many commentators. For instance, some question the purpose of pursuit: "[t]oo many officers and administrators are unable to answer the question, 'what were you going to do when you caught up to him?' With no plan, the chase will likely take on the characteristics of a drag race."⁵ Additionally, it has been suggested that a majority of officers focus on catching the violator, "if it's the last thing (they'll) ever do."⁶ While admiring the constitution of the officers, many question the need for pursuit when the majority of police pursuits arise out of minor traffic violations.⁷ In at least one state, less than twenty percent of pursuits arise from felonies.⁸ But restricting pursuits to violent felonies is not the solution, as shown by the testimony of a california police officer:

[w]e now have a very restrictive pursuit policy. Is the public better served, I'm not sure. Ask the woman who was tied up in the trunk of a car. When the kidnap suspect was about to be pulled over for a traffic violation, he ran. Because of policy the officers did not chase. The woman was later found dead in Los Angeles. She could have been saved. Does she have any less of a right to protection from criminals as you do from a police pursuit?⁹

Pursuit psychology may affect the fleeing offender as well. In a survey of jailed suspects who had been involved in a high-speed pursuit, seventy percent (not surprisingly) stated they would have slowed down if police had terminated the pursuit.¹⁰ In contrast, a similar survey revealed that fleeing suspects often did not know whether a pursuit had been called off.¹¹ The result is that a fleeing suspect may choose to maintain dangerous speeds even after the officer disengages from a pursuit. Of course, fleeing suspects are themselves the primary cause of any harm resulting from pursuits, as even the most critical commentators would have to concede.

B. Pursuit and the Media

The influence of the media on police pursuits is sadly underestimated.¹² Movies frequently portray images of outlaws outrunning a slew of pursuing police officers. A police car, in apparent desperation to catch a fleeing vehicle, skids out of control, drives off a strategically placed car ramp, and causes a six-car pileup. Movies often glorify pursuits. On primetime television, the series "Cops" and "America's Scariest Police chases" have captivated the viewing public's fascination, and networks are quick to report on developing police chases. Modern American history is imprinted with images of an infamous white Blazer with a battery of California patrol vehicles and news helicopters in pursuit. Such images may be entertaining, or even sometimes funny, but the resulting truth and consequences of pursuits are not to be found in most such reports.¹³

Likewise, video game producers have capitalized on the marketability and excitement of police pursuits. Currently and astonishingly, there are video games on the market in which the entire object of the game is to outrun police officers, kill pedestrians, and cause complete destruction in the process. Considering the number of pursuits and pursuit-related injuries which occur every year, some would argue that fiction has contributed to reality in the minds of those who refuse to stop for law enforcement.

C. Pursuit Training, Policy, and Techniques

To increase mental preparedness for and efficiency of pursuits, law enforcement departments can utilize defensive driving courses for their officers, establish policies regarding pursuits, and invest resources in alternative pursuit techniques.

1. Defensive Driving Courses. Defensive driving schools teach officers how to drive more efficiently in a variety of simulated conditions. These courses teach principles such as vehicle dynamics, center of gravity, weight transfer, 360-degree awareness, and some basic physics. Pursuit Intervention Technique ("PIT") training is conducted, in which officers are taught methods to disable vehicles by precision based bumping.¹⁴ Training aids can also be incorporated at these schools. The "SkidCar" has been utilized to teach officers controlled driving techniques under a variety of road conditions.¹⁵

2. Pursuit Policies. Many municipalities have written policies that set the parameters of what is acceptable and what will not be tolerated during pursuits. Such policies must, however, leave room for the exercise of an officer's discretion because the circumstances and timing of each potential or real pursuit will vary. Policies thus may provide factors officers should consider when engaging in a pursuit, and most policies fit into one of three basic models: (1) judgmental—allowing officers to make all major decisions relating to initiation, tactics, and termination; (2) restrictive—placing certain restrictions on officers' judgments and decisions, for example, the supervisor makes the final call; and (3) discouragement—cautioning or discouraging any pursuit, except under the most severe of circumstances.¹⁶ Each model, as appropriate, provides for the individual officer's discretion in deciding when and in what manner to pursue.

3. Alternatives to Pursuit Techniques. One method worth considering to decrease the number of fleeing suspects, thus pursuits, is the legislative process. Most states currently classify vehicular fleeing as a misdemeanor.¹⁷ More stringent laws applicable to those who flee such as classifying vehicular flight as a felony would logically reduce the number of persons fleeing law enforcement officers.¹⁸

On the technology side, there are a number of devices available to assist in preventing and stopping pursuits, although financial barriers may limit their practical application. Helicopters can maintain excellent observational vantage points. Tire deflation devices, most frequently used as retractable spiked barrier strips, are sometimes used in an effort to avoid pursuits. Auto arrestor systems emit electrical pulses that destabilize a vehicle's computers.¹⁹ Patrol cars can fire vehicle-tagging devices onto fleeing vehicles where they communicate with GPS technology to pinpoint that vehicle's location and movement.

D. Legal Liability and Uniform Vehicle Code 11-106

Lawsuits stemming from pursuits have proliferated in the last several years. Case law from state to state varies widely, even though the legislature of most states has adopted and incorporated the uniform Vehicle Code as it applies to emergency vehicles.²⁰ In nearly every state case discussed in section II of this Article, the reviewing court has made some finding regarding the state's emergency vehicle statute and the liability exposure of pursuing officers, the standard of that liability, or its applicability to a police pursuit generally. Uniform Vehicle Code 11-106 provides:

(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

1. Park or stand, irrespective of the provisions of this chapter;

2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

3. Exceed the maximum speed limits so long as life or property are not thereby endangered;

4. Disregard regulations governing direction of movement or turning in specified directions.

(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal...