Police Pursuits: the Legal and Policy Implications of County of Sacramento V. Lewis

• Author: Michael R. Smith
• Published date: 01 September 1999
• Date: 01 September 1999
• DOI: http://doi.org/10.1177/109861119900200301
• Subject Matter: Articles

POLICE PURSUITS: THE LEGAL AND
POLICY IMPLICATIONS OF COUNTY
OF
SACRAMENTO V. LEWIS
MICHAEL R. SMITH
Virginia Commonwealth University
This article examines the legal and policy implications of the recent Supreme
Court decision on police pursuits in County of Sacramento v. Lewis. It
explores the concept of civil liability for pursuit-related injuries under fed-
erallaw, provides a detailed analysis of the Lewis decision, and helps explain
why the Supreme Court ruled as it did in the case. The article also discusses
police liability for pursuit-related injuries under state law and questions
whether current legal doctrine denies citizens injured as the result of police
pursuits a forum for their claims.
On
May 26,1998, the U.S. Supreme Court decided County of Sacramento v.
Lewis. This case provided the Supreme Court’s long-awaited answer to
whether police officers can be held liable under the Fourteenth Amendment
to the U.S. Constitution for causing injuries to citizens during high-speed
pursuits. In Lewis, the Court applied the constitutional standard of &dquo;shocks
the conscience&dquo; in ruling that only police behavior during a pursuit that
shocks the contemporary conscience will be actionable as a due process
violation under 42 U.S.C. § 1983. According to the Court, police actions
during a pursuit are not conscience shocking unless the officers involved
intentionally caused harm to the injured citizen for some purpose unrelated
to a legitimate law enforcement objective.
In the wake of much
recent debate and research on police pursuits, Lewis
provided a definitive answer to the lingering legal question of individual
officer liability under federal law for pursuit-related injuries. However, the
issues before the Court in Lewis did not include the question of what liabil-
ity standard should be applicable under Section 1983 for holding local gov-
ernments or police agencies liable for pursuit-related injuries. This question
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2000 Sage Publications, Inc.

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and others left unanswered by the Lewis decision will be explored later in
the article. For now, though, Lewis cleared up a division among the courts of
appeal on what standard of liability should be used in pursuit cases to hold
individual officers accountable for violating the due process rights of citi-
zens. Moreover, because of the strict standard the Court laid down for hold-
ing pursuing officers liable, the Lewis decision has touched off a lively
debate among academics, attorneys, policy makers, and police executives
over the direction of future police pursuit policy.
The purpose of this article is to contribute to that debate and to help
explore the legal and policy landscape surrounding police vehicle chases.
The first section of the article examines the concept of civil liability for pur-
suit-related injuries under federal law. It provides a brief overview of Sec-
tion 1983 and discusses how the lower federal courts dealt with pur-
suit-related lawsuits prior to Lewis. The second section provides a detailed
analysis of the Lewis decision and helps explain why the Supreme Court
ruled as it did in the case. The third section investigates liability for pur-
suit-related injuries under state law. It discusses the tort of negligence, the
concept of sovereign immunity, and the role that emergency vehicle opera-
tions statutes play in pursuit liability cases. The final section explores the
legal and policy implications of Lewis and questions whether citizens
injured as the result of police pursuits are being denied a forum for their
claims.
LIABILITY FOR PURSUITS UNDER FEDERAL LAW
OVERVIEW OF SECTION 1983
Congress passed 42 U.S.C. § 1983 during the reconstruction period fol-
lowing the Civil War. The statute provides that
Every person who, under color of any statute, ordinance, regulation, custom, or usage
of any State or Territory, subjects, or causes to subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress.
The legislative history of the statute indicates that Congress was con-
cerned following the Civil War that states were failing to protect the rights
of African American citizens, many of whom were subject to vicious at-

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263
tacks by the Ku Klux Klan (Monroe v. Pape, 1961 ). In fact, Section 1983
was
originally part of the Ku Klux Klan Act of 1871. After the Civil War, the
Klan regularly terrorized and lynched African Americans in the southern
states. Local law enforcement officials and politicians often were members
of the Klan and therefore failed to investigate and prosecute those responsi-
ble for these acts. Section 1 of the Ku Klux Klan Act (later redesignated 42
U.S.C § 1983) was designed to give African American citizens a means for
recovering damages in federal court from recalcitrant local officials who
failed to protect them (Smith, 1995).
After its passage, Section 1983 lay largely unused for almost 100 years
(Weinberg, 1991). Its potential as a tool to help enforce the civil rights of
former slaves went unrealized. However, in the late 1950s, attorneys for an
African American family resurrected the statute and brought suit in federal
court against the City of Chicago and 13 Chicago police officers. The family
members alleged that the officers broke into their home without a warrant
and subjected to them humiliation, excessive force, and other constitutional
violations. They brought their suit under Section 1983 (Monroe u Pape,1961 ).
The officers who were involved cynically argued that they were not liable
under Section 1983 precisely because they acted in violation of Illinois law
and the Constitution. Thus, according to this argument, they did not act
&dquo;under color of law&dquo; as required by the plain language of Section 1983,
but rather they acted outside the boundaries of the law. The Supreme
Court rejected this argument and ruled that police officers, who by virtue of
the authority granted them by their office violate a citizen’s constitutional
rights, are liable for damages under Section 1983 (Monroe v. Pape, 1961).
Since Monroe, Section 1983 has become a mainstay for plaintiffs who
allege that law enforcement officials have violated their constitutional or
federal statutory rights.
Section 1983 itself creates no substantive rights. Rather, it is a vehicle for
bringing suit and recovering damages for violations of federal law by those
acting under color of state law (Smith, 1995). The most common constitu-
tional violations alleged against law enforcement officers and agencies
involve the Fourth Amendment (unreasonable searches and seizures) and
the Fourteenth Amendment (due process). Thus, for example, citizens who
allege that police used excessive force, falsely arrested them, or failed to
protect them from dangerous persons may state a claim for a Fourth or Four-
teenth Amendment violation that would entitle them to civil damages under
Section 1983.

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264
CONSTITUTIONAL RIGHTS IMPLICATED IN PURSUITS
Persons injured as the result of a police pursuit have at least two potential
constitutional claims that they can raise. The first is that the police violated
their Fourth Amendment
rights against unreasonable searches and seizures.
In the typical pursuit-related lawsuit, a bystander or the suspect who the
police were chasing alleges injuries resulting from a collision that occurred
during the pursuit. The suspect or bystander sues the officer involved (and
probably the local governmental entity as well) on the theory that the citizen
was &dquo;seized&dquo; within the meaning of the Fourth Amendment when he or she
was struck by the police officer’s vehicle.’
Most lower courts that have been presented with this argument have
rejected it, as did the Supreme Court in Lewis. In two earlier cases, the
Supreme Court set forth the constitutional rule for when a person is &dquo;seized&dquo;
under the Fourth Amendment .
In California v. Hodari D (1991), the
Supreme Court held that a person is not seized under the Fourth Amend-
ment unless (a) the police physically restrain the person or (b) the person
submits to a show of police authority. Thus, a suspect who is actively fleeing
from the police has not yet been seized under the Fourth Amendment
because the police have not physically restrained him or her, nor has the sus-
pect submitted to police control.
Moreover, in Brower v. County of Inyo ( 1989), the Supreme Court held
that a person is seized only when the police have terminated that person’s
freedom of movement through means intentionally applied. In Brower,
police officers placed a tractor-trailer truck across the roadway in an attempt
to stop a fleeing suspect. The suspect crashed into the truck and was killed.
In his family’s subsequent Section 1983 lawsuit against the police, the
Supreme Court ruled that the suspect was seized under the Fourth Amend-
ment because he was stopped by the truck exactly as the police had
intended. However, the Court distinguished this situation from one in which
a police car accidentally crashes into the suspect’s vehicle. In that case, the
suspect would not have been seized because the police did not intend that
result.
After these two cases, a person who is accidentally injured by a police
vehicle (or by an automobile being chased by the police) during a pursuit
...