Police Pursuits: Reforming the Law

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=82 BGCOLOR="#006699" TEXT="#080000"> <div> <FONT SIZE="5" COLOR="#FFFFFF" FACE="Arial" ><B>Institute for Criminal Justice Education, Inc. 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They are not intended to be published as  legal advice or legal opinion about any specific subject matter. Transmission of this ICJE information is not intended to create, and receipt does not constitute, a lawyer-client relationship between the author(s),   ICJE and  the reader. The opinions expressed in the articles found herein are those of the author(s), and not necessarily those of ICJE. Officers and departments should review any proposed change in policy or procedure with the appropriate professional authority or advisor prior  to implementation. All articles may be reproduced and distributed free of charge with attribution.</B></div> </td> <td valign="top" height=398 width="100%" BGCOLOR="#FFFFFF" TEXT="#080000"> <div> <I>Police Pursuits: Reforming the Law</I></div> <bR> <div> <B>The Reformation of Fleeing and Attempting to Elude Police Laws:  A Step Towards Deterrence</B></div> <bR> <div> <B> </B><FONT SIZE="3" COLOR="#0000FF" FACE="Times New Roman" ><B>Marci S. Johns, J.D.</B></FONT></div> <bR> <div>      In an effort to avoid capture, many criminals are willing to risk their lives and the lives of others.  These criminals lead many police officers through high-speed chases resulting in potential injury and civil liability.  According to the National Highway Transportation Safety Administration (NHTSA), an average of four police officers are killed nationwide each year in pursuits.  Also according to the NHTSA, in 1997 alone, there were 255 innocent people killed across the country in police pursuits.  As a result, public scrutiny encouraged by civil litigation and sensational news reports throughout the county has demanded attention to police pursuits.   It is clear that reform is needed; however, initial reform efforts should center upon deterrence rather than the imposition of restrictions or further civil liability for law enforcement and municipalities.  The reformation of penalties for drivers who flee or attempt to elude a pursuing police vehicle will deter dangerous high-speed chases and will minimize the risk of injury to innocent third parties and police and municipality civil liability.  </div> <bR> <div>      </div> <div>      Aside from the number of deaths and injuries sustained, potential civil liability is a ramification of police pursuits.   The offenders themselves and innocent bystanders are the most likely plaintiffs in any civil action resulting from police pursuits. Although individual police officers are not likely sources of recovery, they are likely defendants.  In certain circumstances, the municipalities who employ police officers can be vicariously liable for the actions committed by police officers and are a more likely source of recovery.  Additionally, in <U>Monell v. Department of Social Services</U> (1978), the United States Supreme Court overruled <U>Monroe v. Pape</U> (1961) and held that “municipalities and other local governmental units are included among those `persons' to whom the Civil Rights Act of 1871 applies” (p. 2018).  Further, in 1989, in a decision with a particular impact on pursuit litigation, the United States Supreme Court acknowledged that a municipality could be liable for failure to adequately train police officers in procedures such as pursuit driving (<U>City of Canton v Harris</U>).   </div> <bR> <div>      If the plaintiff chooses state court, the most likely theory of recover is the tort of negligence.  In order to prove negligence, the plaintiff must prove that the officer or municipality owed a duty to the plaintiff, the perpetrator breached that duty and as a proximate cause of the breach, the plaintiff suffered damages.  A string of Alabama cases address negligence as a cause of action in police pursuits.  In <U>Madison v. Weldon</U> (1984), the Supreme Court acknowledged a “liberal standard of care.”  This case involved an injured truck passenger who brought a negligence action against police officers involved in a high-speed chase of an offender when the offender's vehicle collided with the truck.  Initially, in exempting the police officers from statutory speed limits in certain situations, the court refers to an important Alabama Statute.  Alabama Code, §32-5-96 (1975) provides:</div> <bR> <div>       </div> <div> The speed limitations as set forth in this article shall not apply to vehicles when operated with due regard for safety and under the direction of state troopers, police or road or other officers of the law, as herein provided, <I>in the case of apprehension of violators of the law or of persons charged with or suspected of any such violation</I>, nor to fire departments or fire patrol vehicles when traveling in response to a fire alarm, nor to public or private ambulances when traveling in emergencies.  The exemption shall not however protect the driver of such vehicles or his principal from the consequences of reckless disregard of the safety of others, as provided by law. (emphasis added)   </div> <bR> <div>      The Alabama Supreme Court also noted that the trial court erred in its failure to clearly distinguish “between the standard of care to be applied for officers' own personal acts and the standard of care of the officers for their official acts in pursuing a law violator” (<U>Madison v. Weldon</U>, 1984, p. 26).  The court, in quoting a Florida Supreme Court case, <U>Miami v. Horne</U> (1967), concluded the following: </div> <bR> <div> “The rule governing the conduct of [a] police [officer] in pursuit of an escaping offender is that he must operate his car with due care and, in doing so, he is not responsible for the acts of the offender.  Although pursuit may contribute to the reckless driving of the pursued, the officer is not obliged to allow him to escape” (<U>Madison v. Weldon</U>, 1984, p. 27).  </div> <bR> <div>      In another Alabama Supreme Court case, <U>Doran v. City of Madison</U> (1988), the occupants of a vehicle that collided with a pursued vehicle brought an action against police officers for injuries sustained in the collision.  The Alabama Supreme Court followed the reasoning set forth in <U>Madison v. Weldon</U> (1984) in holding that the actions of the <I>offender</I> were the proximate cause of the plaintiff's injuries, <I>not </I>the actions of the pursing officers.  In affirming summary judgment in favor of the defendant police officers, the court held that the “mere fact that a police officer exceeds the maximum speed limit during a pursuit…does not present a genuine issue of material fact as to the liability of that officer for negligence” (<U>Doran v. City of Madison</U>, 1988, p.1313).</div> <bR> <div>      <U>Blair v. City of Rainbow City</U> (1989)     presented a different set of facts for the Alabama Supreme Court, however the Court remained consistent in its opinion that the officer's actions were not the proximate cause of the injury.  This case involved a high-speed chase in which the driver of the pursued vehicle was killed when he went off the road.  The case presented the issue of whether or not a police officer can be found liable for injuries caused to the <I>offender,</I> rather than to an innocent third party, as was the case in <U>Madison v. Weldon</U> (1984) and <U>Doran v. City of Madison</U> (1988).  In its review of this issue, the Court concluded the following:</div> <bR> <div> If pursuing officers are not responsible for the actions of the offender if the fleeing offender injures a third party, it is only logical to conclude that officers are not responsible for the actions of the fleeing offender when he injures himself… (<U>Blair v. City of Rainbow City</U>, 1989, p. 275).</div> <bR> <div>      Earlier Alabama case law was encouraging for law enforcement officers engaged in pursuits.  However, the Alabama Supreme Court, in reversing a Houston County Circuit Court's decision to grant the defendant police officer and city's motion to dismiss, acknowledged that the “lack of due care on [the] part of a police officer in operating his vehicle during [the] pursuit of an escaping offender <I>can be [the] proximate cause of injury</I> sustained by, or death of, third party involved in a collision with fleeing offender” (emphasis added) (<U>Seals v. City of Columbia</U>, 1991, p. 1061). Interestingly, after the Supreme Court reversed and remanded the case, the Houston County Circuit Court granted summary judgment in favor of the defendant police officer and city.  Once again, on appeal, the Alabama Supreme Court in <U>Seals v. City of Columbia</U> (1994) reversed and remanded the case.  This time, the Court went to great lengths in order to distinguish the facts of this case with the earlier cases of <U>Madison v. Weldon</U> (1984), <U>Doran v. City of Madison</U> (1988) and <U>Blair v. City of Rainbow City</U> (1989).  In doing so, the Court concluded that because a road block was in place at the time of the pursuit, there was a “question as to whether [the] police officer acted negligently or wantonly in allegedly continuing to engage in high speed pursuit of suspect …” (<U>Seals v. City of Columbia</U>, 1994, p. 1247) This case is significant in that it expanded the zone of the proximate cause of the accident beyond the actual point of impact.  Although the officer's vehicle was approximately one-half mile away from the collision, the Court clearly suggests that the actions of a pursuing police officer can be the proximate cause of injuries under certain circumstances, thus increasing the likelihood of liability for the officer and municipality.  </div> <bR> <div>      Jurisdictions outside of Alabama have also acknowledged, to an even greater extent, that the actions of a pursuing police officer can be the proximate cause of injuries.  Victor E. Kappeler (1997) suggests that this is a growing trend among state courts.   He explains,</div> <bR> <div> In applying the concept of proximate cause, courts examine the situational factors surrounding the conduct that led to an injury. Rather than making a pronouncement that police conduct in a third-party pursuit situation cannot be the proximate cause of injury, these courts adopt a case-by-case approach. In doing so, the courts do not automatically confine proximate cause to the zone of physical contact between the police vehicle and the injured party, holding instead that the conduct of a pursing police officer may be the proximate cause of injuries sustained in an accident even where the police vehicle did not directly become involved in the collision (p.131).  </div> <div>                                     </div> <div>      The Supreme Court of Tennessee concluded that, “an officer's decision to commence or continue a high-speed chase… may form the basis of liability in an action brought by a third party who is injured by the fleeing suspect, if the officer's decision was unreasonable” (<U>Haynes v. Hamilton County</U>, 1994, p.610).  This decision requires a closer look at the police officer engaged in the pursuit.  The court included determinative factors that should be considered in order to determine whether or not the officer's decision was “unreasonable” including police policies, speed, area of pursuit, weather and road conditions, presence of traffic and pedestrians, alternative means of apprehension and the overall danger posed to the public by pursuing the suspect (<U>Haynes v. Hamilton County</U> (1994).   Overall, a growing number of state courts have held that a pursuing officer's actions can be a proximate cause of continued flight and any resulting injuries of the offender or third parties.</div> <bR> <div>      Although also applicable in state court proceedings, Title 42 U.S. Code § 1983 or the Federal Civil Rights Act generally provides a remedy for violations of rights secured by the United States Constitution and laws in the federal arena.  The United States Supreme Court provides guidance in the area of pursuit liability with its decision in <U>Sacramento County v. Lewis</U> (1998).  The United States Supreme Court adopted a “shocks the conscience” approach to police pursuit liability.  Specifically, the court concluded  “while prudence would have repressed the reaction [to initiate pursuit], the officer's instinct was to do his job as a law enforcement officer, not to terrorize, cause harm, or kill” (<U>Sacramento County v. Lewis</U>, 1998, p. 1721).  With the imposition of the “shocks the conscience” standard presented by <U>Sacramento County v. Lewis</U> (1998), it appeared that federal courts would be friendlier forums for law enforcement officers.  However, the United States District Court for the District of Minnesota recently revisited this issue and while the court acknowledged “in cases involving split-second judgments, difficult law enforcement choices, and sudden instincts, police officers must be given broad discretion to act,” the court also insisted that, in a chase which last over six minutes and measured over six miles, the facts of the case took the “decision making process outside the realm of `split second judgment'” (<U>Feist v. Simonson</U>, 1999, pp. 1145-1146).  The court observed that at many points throughout the pursuit, the officer had an opportunity to “balance the law enforcement goal of apprehending [the offender] for use of a stolen vehicle (a low-level penalty likely carrying no prison time) against the threat to the general public” (<U>Fiest v. Simonson</U>, 1999, 1146).  This District Court's decision questions the protection provided to law enforcement officers in <U>Sacramento County v. Lewis</U> (1998), particularly in those pursuits in which officers are allowed time to decide whether to continue to pursue.  </div> <bR> <div>      Law enforcement officers clearly face difficult decisions when initiating a pursuit.   It is argued that police officers have a duty to pursue, apprehend and arrest violators of the law.</div> <bR> <div> The police function includes protection of life and property as well as enforcement of the law and maintenance of an orderly community. However, apprehension of a criminal is at the core of the police mission.  It can be argued that any law violator should be chased and arrested, for if a police officer foregoes a chase, this decision violates his duty, affects his reputation, and perhaps encourages other criminals to attempt an escape  (Jensen, 1998, p. 1277).</div> <bR> <div>      In light of the duty imposed on police officers to apprehend the criminal and protect the community, placing restrictions on police pursuits is not the only answer to police pursuit ramifications, rather it is necessary and logical to first place upon the offender a much higher penalty in the attempt to curtail police pursuits.   </div> <bR> <div>     </div> <div>      Currently, Alabama Code § 32-5A-193 (1975), states the following, in pertinent part:     </div> <bR> <div> (a) Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or otherwise flees or attempts to elude a pursuing police vehicle, when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor.  </div> <bR> <div> (b) Every person convicted of fleeing or attempting to elude a police officer shall be punished by imprisonment for not less than 30 days nor more than six months, or by a fine of not less than $100.00 nor more than $500, or by both such fine and imprisonment.  </div> <bR> <div>      As Alabama law dictates at this time, the punishment for risking the lives of police and innocent third parties, as well as subjecting police and municipalities to civil liability ranges from a mere 30 days to six months imprisonment and/or a fine of $100 to $500.  House Bill 69 (2000), which was introduced last legislative session, sought to increase the penalties for fleeing or attempting to elude police.  The bill intended to impose a graduated system of penalties for offenders.  Upon a second conviction within a five-year period of fleeing or attempt to elude a police officer, the offender would be sentenced to a mandatory jail sentence for not less than 48 hours and could be sentenced up to one year. In addition, this second conviction carries with it a fine, not less than $500.  Additionally, this proposed amendment includes a revocation of driving privileges for a period of one year.  The penalties gradually increase upon each subsequent conviction.  The final maximum penalty for fourth and subsequent convictions of fleeing or attempting to elude a police officer includes a fine of not less than $2,000 or more than $5,000 and imprisonment of not less than one year and one day or more than five years, a Class C felony.  It is crucial that reformation of fleeing and attempting to elude police laws in Alabama begin with the adoption of these amendments.  Although these amendments to fleeing or attempting to elude police laws are a step towards deterrence, they remain a small price to pay for endangering the lives of Alabama police officers and innocent law-abiding citizens. </div> <bR> <div>  </div> <div>       While it is certain the police officer will face the unyielding responsibility of maintaining public order, which includes capturing offenders, it remains uncertain whether they will themselves face injury, subject others to injury, or ultimately face civil liability amidst an ever-changing and rocky standard of legal review.  Indeed, with the possibility of civil damages facing police officers and municipalities, police pursuits are an important component of any internal risk-management effort, including restrictive pursuit policies. However, internal police policies efforts and restrictions alone are not enough to alleviate the physical and monetary danger imposed by police pursuits. “Restrictive pursuit policies will be relatively powerless if sanctions for fleeing and eluding are minimal or ineffective” (Alpert et al., 2000, p.174).  A vital strategy in the struggle to minimize police pursuit related harms is the reformation of fleeing or attempting to elude police laws such as the proposed Alabama amendment.  This step, coupled with increased funding for public education to make drivers aware that fleeing can result in a felony conviction, is certainly a step towards deterrence.    </div> <bR> <div> <B>References</B></div> <bR> <div> Ala. Code § 32-5A-193 (1975).</div> <div> Ala. H. 69, 2000 Reg. Sess. (Feb. 1, 2000).  </div> <div> Alpert, P. A., Dunham, R. G., Kenny, D. J, & Smith, W. C. (2000). <U>Police pursuits: What we know.</U> Washington, DC: Police Executive Research Forum.</div> <div> <I>Blair v. City of Rainbow City</I>, 542 So. 2d 275 (1989).</div> <div> <I>City of Canton v. Harris,</I> 489 U.S. 378 (1989).</div> <div> <I>County of Sacramento v. Lewis</I>, 523 U.S. 833 (1998).</div> <div> <I>Doran v. City of Madison,</I> 519 So. 2d 1308 (1988).</div> <div> <I>Feist v. Simonson</I>, 36 F. Supp. 2d 1136 (1999). </div> <div> Jenson, T. N. (1998). <I>Cooling the hot pursuit: Toward a categorical approach</I>. <U>Indiana Law Journal, 73,</U> 1277-1284.</div> <div> Kappeler, V. E. (1997). <U>Critical issues in police civil liability </U>(2nd ed.). Prospect Heights, IL: Waveland Press, Inc. </div> <div> <I>Madison v. Weldon</I>, 446 So. 2d 21 (Ala. 1984).</div> <div> <I>Monell v. Department of Social Serv</I><I>ice</I><I>s</I>, 436 U.S. 658 (1978).</div> <div> <I>Seals v. City of Columbia,</I> 575 So. 2d 1061 (Ala. 1991). </div> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <div>    <script src="http://hits.icdirect.com/pgTracker.asp?wsID=89&hz=HZ0029&ctr=344"></script> <A href="http://whozOnTop.com"> </A>   </div> <div>    </div> </td> </tr></table></body>