High-speed chases.

County of Sacramento v. Lewis is a major, but not insurmountable, obstacle to recovery for plaintiffs injured by the actions of government officers during high-speed pursuits and other emergencies.

Under what circumstances can the government or government officers be held liable for injuries that result from high-speed police chases? In County of Sacramento v. Lewis, the U.S. Supreme Court made recovery by injured plaintiffs extremely difficult.(1)

The Court held that due process is violated only if the officers' behavior "shocks the conscience," which requires demonstrating that the officers acted with the intent of causing harm to the victim.(2)

The Court announced a standard to be applied in all emergency situations in which there is not the opportunity for deliberation and reflection. The decision is a major obstacle to recovery for plaintiffs injured by the actions of government officers during emergencies.

In the more than two years since Lewis, many courts predictably have applied this decision to bar recovery, especially in high-speed chase cases. However, several decisions have distinguished Lewis and have held that it does not apply, even in high-speed chase situations, if officers had the opportunity for deliberation and reflection.(3) These decisions clearly point the way for plaintiff attorneys: Overcoming Lewis requires alleging and proving that the situation allowed for thought and deliberation and thus liability should be imposed on the more lenient "deliberate indifference" standard.

Like almost all high-speed chase cases, County of Sacramento v. Lewis had tragic facts. A police officer misunderstood what another officer had said and gave chase to two boys on a motorcycle. The chase ended in a crash, and a passenger on the motorcycle, a teenage boy, died. A suit was brought against the county on behalf of the boy, alleging a denial of his life without due process of law. The Ninth Circuit held that the county could be held liable if there was proof of deliberate indifference.

The U.S. Supreme Court unanimously reversed. Justice David Souter wrote for the Court that "high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under 42 U.S.C. [sections] 1983."(4)

The Court held that in emergency situations, where there is not the opportunity for deliberation or reflection, the deliberate-indifference standard is inappropriate. In these circumstances, due process is violated only if the officers' behavior shocks the conscience.(5)

In Rochin v. California, which the Court heard almost 50 years ago, the Court held that officers violated a suspect's due process rights when they forcibly pumped his stomach because this shocked the conscience.(6) In Lewis, the Court adopted this standard for evaluating police conduct in high-speed chases, but with an important modification: The Court defined "shocks the conscience" to require that the police intended to inflict injury on the victim.(7)

Souter said that the level of care required of executive agents in most circumstances cannot reasonably be expected of police in hazardous high-speed law enforcement chases. The Court explained that deliberate indifference is inapplicable to situations where decisions are "necessarily made in haste, under pressure, and frequently without the luxury of a second chance."(8)

The Court said that the officer's behavior in giving chase was an instinctive and instantaneous response to the motorcycle driver's lawless activity. The officer acted not out of malice or a desire to inflict harm but from a need to deal with illegal activity that he played no part in instigating.

Lewis creates a significant obstacle to recovery by plaintiffs injured in high-speed chases and other emergency contexts. Not only did the Court reject deliberate indifference as a basis for recovery, but it also held that the plaintiff must prove that officers intended to cause harm. This standard is very difficult, and often impossible, to meet.

Denial of relief

Many courts have used Lewis as the basis for denying relief to civil rights plaintiffs. Some cases involved high-speed police chases.(9)

For example, in Hall v. Village of Bartonville Police Department, the plaintiff sued for injuries incurred when a truck pursued at high speed by a police officer collided with her car.(10) The Illinois Court of Appeals affirmed a grant of summary judgment in favor of the defendant.

The plaintiff attempted to distinguish Lewis based on the Supreme Court's emphasis in that case that the driver had caused the passenger's death. Souter's majority opinion went to great lengths to stress the driver's culpable conduct, which led to the perilous pursuit. In Hall, the victim was simply in the wrong place at the wrong time.

But the Illinois Court of Appeals found this distinction irrelevant. Quoting Lewis, it held that liability was inappropriate because "the officer's instinct was to do his job as a law enforcement officer, not to induce [the suspect's] lawlessness, or to terrorize, cause harm, or kill."(11)

Lewis has also been applied in emergency situations not involving high-speed chases. In Claybrook v. Birchwell, the Sixth Circuit affirmed the dismissal of a civil rights claim by a person who was inadvertently shot during a police shootout.(12) The court said that the shocks-the-conscience test applies to police actions in dangerous situations that call for immediate instinctive judgment, in contrast to instances in which officials have ample opportunity to consider a range of alternative courses of action.(13) The court said that "the malicious or sadistic" test of conscience-shocking behavior controls the due process analysis because the officers "had no opportunity to ponder or debate their reaction to the dangerous actions of the armed man."(14)

Judge Eric Clay dissented and argued that the deliberate-indifference test should be applied. He contended that "it is clear that the officers had sufficient time to make an unhurried judgment about their conduct upon seeing [the man] with his weapon."(15) In other words, the disagreement between the majority and the dissent was over whether the situation allowed for reflection and deliberation.

In Cannon v. City of Philadelphia, a federal district court used Lewis to bar a plaintiff's recovery in a situation far less frantic than a high-speed chase or a police shootout.(16) The plaintiff filed suit under 42 U.S.C. [sections] 1983, alleging that police officers violated her Fourteenth Amendment substantive due process rights by failing to help her and actively delaying her efforts to reach the hospital when she was having a heart attack.

The district court acknowledged that the situation did not involve the highly charged environment of a police chase, but, nonetheless, it concluded that the shocks-the-conscience test should be applied. The court explained that the "police officers were operating in the relative chaos of a recent shooting and accident and, therefore, were attempting to balance a multitude of competing concerns."(17) It concluded that the officers' conduct did not shock the conscience "in the context of the chaotic and dangerous crime scene."(18)

Opportunity for deliberation

Few plaintiffs will succeed when a court applies the shocks-the-conscience test. It will be extremely difficult to prove that the police officers acted with the intent of causing harm to the victim. Even if they were totally reckless, and even if their behavior is conscience-shocking to the reasonable person, that is not enough. Lewis says that the test requires that the defendants intentionally harmed the victims.

Therefore, the challenge for plaintiff attorneys is to convince the court that Lewis is inapplicable because the situation offered the officers an opportunity to deliberate and reflect. Several courts have relied on this distinction to rule in favor of plaintiffs, even in high-speed chase cases.

For example, in Feist v. Simonson, the defendant, an officer in the Minneapolis Police Department, was involved in a high-speed chase that resulted in the death of an uninvolved third person.(19) The pursued suspect's car was traveling against traffic when it crashed into the decedent's.

The Eighth Circuit reviewed the events leading up to the chase and concluded that deliberate indifference rather than shocks the conscience was the appropriate test. The court said that "in situations where an officer could have actually deliberated, courts are to apply the deliberate-indifference standard to determine whether the behavior was conscience-shocking."(20) It concluded that the officer had multiple opportunities to "balance the law enforcement goal of apprehending [the fleeing suspect] for use of a stolen vehicle ... against the threat to the general public."(21) Because the deliberate-indifference standard was applied, the plaintiff did not need to allege or prove that the officers intended to cause the harm.

Similarly, in Helseth v. Burch, a federal district court applied deliberate indifference in a suit against a police officer and a city for injuries that resulted from a high-speed chase.(22) The chase, which involved speeds in excess of 100 mph, ended when the fleeing suspect's car hit the plaintiff's truck. The plaintiff was severely injured and rendered quadriplegic. Another passenger in the truck was killed in the accident.

The district court ruled that the deliberate-indifference test, rather than the shocks-the-conscience standard, applied because the defendant officer had multiple opportunities for reflection. The court said,

   At each significant juncture along the chase route--before pursuing [the
   suspect] off-road onto residential property, before chasing him against
   oncoming traffic onto a highway, before striking [his] vehicle multiple
   times, and at the point when [the suspect's] badly damaged vehicle began
   swerving--[the officer] had an opportunity to weigh the importance of
   apprehending [the suspect] against the escalating threat to public safety
   that the chase presented.(23)

The court noted that the officer "testified that during the chase it was possible for him to assess continually whether the goal of apprehending [the suspect] outweighed the risks to public safety."(24) All of this convinced the court that the officer engaged in "conscious deliberation rather than reflexive conduct."(25)

Thus, the task for plaintiff attorneys is to show the court that the police officers had the opportunity for conscious deliberation. Cases such as Feist and Helseth are powerful precedents showing that proving liability in high-speed chase cases is still possible.

Other options

Plaintiff attorneys handling these cases should consider possible state law claims against the officers and government entities. Lewis dealt only with the standard for recovery under the Due Process Clause of the Fourteenth Amendment. In no way does it affect claims under state constitutions or, more important, state tort law.

For example, in Czarecki v. Scherer, a district court denied the defendants' motion for summary judgment on a plaintiff's state law tort claim arising from a high-speed chase.(26) A woman died as a result of injuries incurred during a chase, and her estate sued the city, the police chief, and the patrol officers involved on both federal and state claims. Although the court found that the due process claims were barred by Lewis, it permitted the state law negligence claims to go forward. The court concluded that the issue of whether the patrol officers acted recklessly, and were thus liable under state tort law, was a question for the jury.

Lewis greatly limits the ability of victims of police misconduct in emergency situations to recover for their injuries. As one commentator said, "the shocks-the-conscience standard gives officers limitless authority to endanger innocent bystanders without providing a satisfactory means of recourse."(27) To overcome Lewis, plaintiffs need to show that the situation allowed time for officer deliberation and, thus, that the preferable deliberate-indifference standard should be applied.

Notes

(1.) 523 U.S. 833 (1998).

(2.) Id. at 853-54.

(3.) See, e.g., Feist v. Simonson, 222 F.3d 455, 462 (8th Cir. 2000); Helseth v. Burch, 109 F. Supp. 2d 1066, 1076 (D. Minn. 2000).

(4.) 523 U.S. 833, 854.

(5.) Id. at 853-54.

(6.) 342 U.S. 165 (1952).

(7.) 523 U.S. 833, 849, 853.

(8.) Id. at 852.

(9.) See, e.g., Courville v. City of Lake Charles, 720 So. 2d 789 (La. Ct. App. 1998) (denying recovery to victim of high-speed chase based on County of Sacramento v. Lewis).

(10.) 699 N.E.2d 148 (Ill. Ct. App. 1998).

(11.) Id. at 150 (citations omitted).

(12.) 199 F.3d 350, 359-60 (6th Cir. 2000).

(13.) Id. at 359.

(14.) Id.

(15.) Id. at 362 (Clay, J., dissenting).

(16.) 86 F. Supp. 2d 460 (E.D. Pa. 2000).

(17.) Id. at 471.

(18.) Id.

(19.) 222 F.3d 455 (8th Cir. 2000).

(20.) Id. at 461.

(21.) Id.

(22.) 109 F. Supp. 2d 1066 (D. Minn. 2000).

(23.) Id. at 1076.

(24.) Id.

(25.) Id.

(26.) 64 F. Supp. 2d 92 (N.D.N.Y. 1999).

(27.) Erica L. Reilley, County of Sacramento v. Lewis: A "Conscious-Shocking" Decision Regarding Officer Liability in High-Speed Police Pursuits, 32 LOY. L.A. L. REV. 1357, 1359 (1999).

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School. He thanks Evan Goldstein for his assistance preparing this article.