The Inherent Constitutionality of the Police Use of Deadly Force to Stop Dangerous Pursuits - Michael Douglas Owens

• Publication year: 2001

BComment

The Inherent Constitutionality of the Police Use of Deadly Force to Stop Dangerous Pursuits^*

I, Introduction

Every day in our country, police agencies pursue criminal suspects who are unlawfully attempting to elude them. Reality-based television shows, such as Cops and the Police Videos series on the Fox Network, bring home to the public some measure of the adrenaline-producing excitement that automobile pursuits engender. Rarely, however, does one see the tragedy that often results from these pursuits.¹ While reliable nationwide statistics on police pursuits are not available, various studies depict the rate of accidents as ranging from twenty-nine percent to seventy percent, with a rate of injury ranging from eleven percent to twenty-seven percent.² Injuries and deaths inflicted upon innocent third parties have led some to urge for the abolition of police pursuits when the predicate offenses involved are "minor crimes or traffic violations."³ Others argue for stricter pursuit policies.⁴ Still others urge a higher degree of police liability for the damage and injuries that sometimes result.⁵

While commentators discuss avenues for police liability and the risks to society that police chases present, there is a common element missing in most works on this subject. Quite simply, the focus is shifted away from the law violator's actions and conduct.⁶ When taken to its logical conclusion, this position allows the somewhat aberrational result that the police, merely by deciding to pursue a fleeing suspect, may be liable for injuries inflicted upon an innocent third party.⁷

It is the position of this Comment that whenever someone uses a vehicle to flee unlawfully from the police, the police are justified in using deadly force to end the pursuit if the suspect drives in any manner inconsistent with the safe operation of a vehicle. Not only is deadly force constitutional in these circumstances, it is warranted both from a tactical and "interests of society" perspective. In short, the risks of injury or death from police pursuits should be upon the violators who, by their flight, create the risks, rather than upon the citizenry in general. This Comment will illustrate the inherent constitutionality of using deadly force to stop fleeing drivers, and it is hoped that it will serve as a starting point for discussing the disadvantages of enforcing criminal laws in a manner which while possibly beneficial to the suspect, is detrimental to society overall.

Part II introduces the statute most often used as a basis for recovery when constitutional rights are alleged to have been violated, as well as the qualified immunity doctrine. Part III explains, to the extent possible, the available statistical data that deal with pursuits. Part IV examines Supreme Court cases that especially impact consideration of the constitutionality of the police use of force in the context of pursuits. Part V examines a series of chases during the course of which deadly force was used by the police to terminate the pursuits and the subsequent review of these actions by several courts. Part VI provides a theory on the correct manner in which to view using deadly force to stop pursuits. Part VII deals with the "violent-felon only" chase policy adopted by some agencies. Part VIII examines some of the broader implications of using deadly force to stop dangerous chases. Finally, Part IX deals with the present inadequacy of alternative means to stop pursuits.

II. Theories of Liability

Those injured as a result of pursuits have several options available upon which to premise recovery from the police. A common approach when either the pursued suspect or a third party is injured is a claim brought pursuant to 42 U.S.C. Sec. 1983.⁸ Rather than serving as a source of substantive rights, Section 1983 is a vehicle for recovery when federal rights conferred elsewhere are infringed.⁹ A prima facie case under this statute can be made out by alleging (1) the wrongful conduct was committed by a person acting under color of state law, and (2) the conduct deprived the victim of some "rights, privileges, or immunities secured by the Constitution and [federal] laws."¹⁰ In the context of pursuits and deadly force, the most applicable source of federal rights upon which a Section 1983 action may be based when the suspect brings suit is the Fourth Amendment's prohibition against unreasonable seizures.¹¹ When a third party is injured, or when the officer's actions do not constitute a seizure of the suspect, the Fourteenth Amendment's guarantee of due process is likely to be looked to as a source of rights.¹² An officer can avoid individual liability for a Section 1983 action by asserting a defense of qualified immunity.¹³ This defense shields government officials performing discretionary functions from liability for civil damages so long as their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."¹⁴ When a clearly established right is violated, the proper inquiry for the court is "whether '[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates the right.'"¹⁵ Therefore, "[i]f reasonable public officials could differ on the lawfulness of the defendant's actions," the officer is entitled to qualified immunity.

In the past, local governments were wholly immune from suit under Section 1983.¹⁷ However, municipalities may now be liable if "deliberate action attributable to the municipality itself is the 'moving force' behind the plaintiff's deprivation of rights."¹⁸ In other words, the plaintiff must show his injury was caused by a municipal policy or custom.¹⁹ This requirement "ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality."²⁰

Unlike individual officers, municipalities are not entitled to a qualified immunity defense under Section 1983.²¹ This is so because liability attaches only if "a municipal policy or custom caused the constitutional injury."²² By the same token, municipalities cannot be held liable for the actions of their agents through the use of the traditional tort doctrine of respondeat superior.²³ The reason for this is the statute specifically provides that "[e]very person who deprives a citizen of his constitutional rights under color of state law "shall be liable to the party injured."²⁴ In the Supreme Court's view, this language '"cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor.'"²⁵ The "no respondeat superior" interpretation of Section 1983 is also supported by its legislative history, which illustrates that '"while Congress never questioned its power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its constitutional power to impose such liability in order to oblige municipalities to control the conduct of others.'"²⁶

A second theory of police liability may be found in the tort law of each state. Whether the party causing the injury was the officer or the pursued suspect, actions sounding in some form of negligence may be asserted in addition to constitutional claims.²⁷ Due to the variations found in state law regarding such topics as proximate cause, intervening criminal conduct, and the waiver of sovereign immunity, tort law claims will receive only cursory discussion in this Comment.

III. Statistical Information

As noted in Part I, no nationwide statistics have been collected on pursuits.²⁸ The data that is available consists of surveys of various police agencies across the country. Of primary importance to the present issue are the accident, injury, and death rates which have been shown.

In a study conducted by the California Highway Patrol in the early 1980s, it was found that of the 683 pursuits engaged in, 198 (29%) resulted in accidents, 99 (11%) resulted in injuries, and 7 (1%) resulted in deaths.²⁹ The study also found that 77% of the suspects were apprehended.³⁰ A 6-year survey of data from the Baltimore County Police shows that of 1,064 pursuits, 388 (36%) resulted in accidents.³¹ However, neither the death nor injury rates from these pursuits were reported.³²

A survey conducted in 1994 by the Minnesota Board of Peace Officer Standards and Training found that out of 764 pursuits conducted statewide, 307 (40%) ended in accidents, 205 (27%) resulted in injuries, and only 1 (.001%) resulted in a death.³³ However, this data excluded pursuits by the Minnesota Highway Patrol, which keeps separate records.³⁴ Its records show that in 1994, the Highway Patrol was involved in 123 pursuits, with 86 (70%) ending in accidents and 30 (24%) resulting in injuries.³⁵ The death rate was not reported.³⁶

A complex analysis of 129 agencies in Illinois examined 700 pursuits that took place between 1991 and 1992.³⁷ This study found an accident rate of 39% (273), an injury rate of 11% (77), and a death rate of 1.7% (12).³⁸ It also examined several crime categories, finding that "pursuits involving minor traffic violations resulted in accidents 22% of the time, [those involving] suspected stolen vehicles resulted in an accident 68% of the timet,] and pursuits initiated for a suspected DUI resulted in an accident 48% of the time, as compared to the 39% overall average."³⁹ Importantly, the study also found that "31% of all accidents involved innocent bystanders and that the most common terminating event (39%) was an accident."⁴⁰ An additional point of note is that data from the two largest police agencies in the state, the Chicago Police Department and the Illinois State Police, were not included in the analysis.⁴¹

Another detailed survey took place between 1985 and 1987 in...