Police chases: more deadly than a speeding bullet?

When cops put the pedal to the metal, the consequences are offer' as tragic as a police shooting. This term, the Supreme Court will decide how to judge police actions in high speed pursuits.

One morning next spring, the nine justices of the U.S. Supreme Court will file from behind the velvet curtain and announce their decision in Lewis v. Sacramento County.(1) There is a virtual statistical certainty that later the same day, someone in the United States will die in a high speed vehicular police pursuit.(2)

The Court in Lewis is expected to define the standard for determining when these chases violate the substantive Due Process Clause of the Constitution, an issue on which there is a conflict among the federal circuits. The decision will have a far-reaching impact on both police practices and the future of all substantive due process claims. Whatever the Court decides, establishing liability in these cases will continue to be one of the most difficult challenges in police misconduct litigation.

The Supreme Court has already determined that vehicular pursuits that end in a collision not intended by the pursuing officers do not violate an injured party's Fourth Amendment rights.(3) A violation may occur, however, when police in pursuit set up a roadblock. A roadblock may constitute a "seizure of the person" under the Fourth Amendment, but only when police intend to use it to terminate the driver's freedom of movement.(4)

Because most police chases do not violate the Fourth Amendment, victims of high speed chases or their families must argue that their substantive due process rights were violated in order to assert a constitutional claim.(5) All federal circuits considering the issue--except the Seventh Circuit--have held that improperly conducted vehicular pursuits by police may, in some circumstances, violate an injured party's substantive due process rights.(6)

In addition, the lower federal courts have also established that a bystander struck by the vehicle being pursued may sue. Direct contact with the police vehicle itself is not required.(7)

There is a sharp division among the circuits about the standard of proof required to prove a substantive due process violation. The Ninth Circuit held in Lewis that a police pursuit will violate the substantive due process rights of an injured person when the police officer's conduct is "deliberately indifferent" to or in "reckless disregard" of the person's right to life and personal security.(8)

In contrast, in Evans v. Avery, the First Circuit held that a plaintiff must prove that police conduct is "shocking to the conscience" to establish a substantive due process violation.(9) The Third, Fourth, Fifth, and Tenth Circuits have also adopted this standard.(10) The standard of proof in other circuits is unclear.

Given the current makeup of the Supreme Court, it is likely the Court will reverse the Ninth Circuit's decision in Lewis,(11) despite the strength of the arguments against the shocks-the-conscience standard.(12) The Court has repeatedly demonstrated its distaste for substantive due process claims, and it is unlikely that a decision in any police misconduct case would go against the tide. Lewis has generated great interest among amici, and the law enforcement community has weighed in heavily in favor of the shocks-the-conscience test, which most plaintiffs are unable to meet.

Judicial hostility

A decision imposing the shocks-the-conscience test will create a virtual roadblock in front of the jury box on constitutional claims. It is already true that regardless of what standard has been applied, few police chases that have reached the appellate courts have resulted in decisions favorable to plaintiffs.(13)

Although plaintiffs have been somewhat successful in litigating pursuit claims on negligence grounds, judicial hostility to constitutional claims runs high. When the standard requires police conduct that shocks the conscience, some judges have demonstrated that they are so inured to injuries caused by overzealous policing that their consciences are virtually shockproof.

Perhaps the worst example of this was in Temkin v. Frederick County Commissioners.(14) There, the Fourth Circuit affirmed summary judgment in favor of a police officer who had chased a vehicle at speeds up to 105 miles per hour in connection with an alleged theft of $17 worth of gasoline. The officer chased the suspect's vehicle into a congested area near a carnival. The pursued vehicle failed to navigate a curve, crossed the center line, and struck an oncoming car, which was then struck by the police car, causing serious injuries to the driver of the third vehicle.

The most striking aspect of Temkin is that the court made no effort to justify the high speed pursuit of an alleged misdemeanant. The court simply asserted the facts were similar to or less egregious than those in other reported decisions. It concluded that the officer's conduct did not "shock the conscience," although it was "disturbing and lacking in judgment."

Experts

The experience of the law enforcement community demonstrates that high speed pursuits are inherently dangerous, likely to end in a collision, and more often than not initiated for trivial reasons. What should make the asserted justifications for many chases shocking to the conscience is that they are at odds with this vast body of experience. Expert testimony is essential to inform the judicial conscience of the background against which chases must be evaluated. Four points are paramount.

* Balancing test. There is little dispute among law enforcement professionals that the propriety of a high speed pursuit must be determined by balancing the law enforcement objectives to be served against the risks to lives and safety that it might engender. Many U.S. police agencies, in written rules or guidelines, recognize this standard for determining when to initiate a pursuit and when to abandon it.

Many agencies establish their policies regarding vehicular pursuits in detail in their general orders. These orders, internally generated, serve as the procedural guidelines that govern the actions of all sworn personnel. For example, the general orders of the Sacramento County Police Department, which was sued in Lewis, prescribed that with respect to operating department vehicles, an officer has a duty "to exercise that amount of care which, under all circumstances, would not impose an unreasonable risk of harm upon others."

The Sacramento orders mandate consideration of whether "the seriousness of the offense warrants a chase at speeds in excess of the posted limit," whether "the need for, and possibility of, apprehension justify a pursuit under the existing conditions," and whether "the pursuit presents unreasonable hazards to life and property." Police practices experts agree that these are national norms.(15)

Many officers, however, are not able to articulate their decision to begin or continue a pursuit in these terms. This suggests that plaintiffs should attempt to make officers justify their reasons for a chase as early as possible in the course of a suit.

On a related issue, proper pursuit policies require that once a chase is initiated, the decision to continue should be made by a superior officer or police dispatcher--not by the officer behind the wheel whose adrenaline is pumping. This injunction is frequently overlooked in practice.

* Empirical studies. These demonstrate that the vehicle chase practices of many officers are unjustifiably dangerous. Although there is no central repository for national statistics on pursuits, many departments have conducted their own studies. Their findings are the subject of a brief filed in the Lewis case by a citizens' organization known as STOPP, Solutions to the Tragedies of Police Pursuits. The brief was prepared by ATLA member Andrew Clarke of Memphis, Tennessee. The results of the studies, conducted in a variety of jurisdictions, are surprisingly uniform.(16)

Geoffrey Alpert, an expert in this area, has testified that the published studies, together with his own analysis of 3,000 to 4,000 pursuits, show that 40 percent of pursuits will end in a collision, and 20 percent of those collisions will result in injuries.(17) This is a high injury rate, especially since a majority of pursuits are initiated in connection with traffic offenses.

In eight of nine studies cited by STOPP, more than half the vehicular pursuits were initiated for traffic offenses. In the ninth study, 45 percent were initiated for that reason. In the largest study described in the brief, the Minnesota Highway Patrol found that of 5,903 pursuits, 70 percent were initiated for traffic offenses.

Officers rarely voluntarily terminate pursuits. In three of the four studies cited by STOPP that included data on this issue, only 4 percent of pursuits were voluntarily terminated. Given that 40 percent of pursuits end in collisions, the available data suggest that in many departments a pursuit is 10 times more likely to end in a crash than to have an officer abandon it.

* Deadly force standard. Both high speed pursuits and firearms discharges are "critical incidents" from the perspective of police administrators. High speed pursuits should be subjected to the same scrutiny applied to the use of deadly force. Police officials understand this, but the point is seldom made or accepted in court.

For example, Seventh Circuit Judge Frank Easterbrook said in Mays v. City of East St. Louis, "An automobile on one's tail is some distance from a bullet in the back."(18) Constitutional doctrine creates an anomaly between the high standard that must be met to justify the use of deadly force under Tennessee v. Garner(19) and the lack of meaningful judicial review of police chases.

The facts demonstrate that high speed chases should be equated with the use of deadly force. For example, the National Highway Traffic Safety Administration documents an average of 350 deaths each year from police pursuits while acknowledging that these deaths are probably underreported. By comparison, the FBI's Uniform Crime Reports show an annual average of 412 deaths from police firearms.(20)

Alpert has testified that the two most critical actions taken by police are firearms discharges and emergency response driving. He notes that the likelihood of a bullet from an officer's firearm hitting someone is not as high as the probability of a collision resulting from a pursuit.

Michael Cosgrove, who trains armed security officers for nuclear facilities for the U.S. Department of Energy, says that "pursuits, purely by volume, pose more risk to the public in terms of injuries and deaths than do discharge firearms incidents."(21)

Lou Reiter, another police practices expert, notes that in both high speed pursuits and the use of firearms, officers are sometimes permitted to go beyond the ordinary constraints of the law.(22) In certain exigent circumstances, they can exceed the posted speed limit and use deadly force. He concludes that the constitutional standards, used to review both types of police operations should be similar.

Police practices expert D.P. Van Blaricom, a former police chief in Bellevue, Washington, noted in his declaration supporting the plaintiff's opposition to summary judgment in the Lewis case that the California Commission on Peace Officers Standards and Training (POST) teaches police recruits that a patrol car can be more deadly than a firearm.

A handout supplied to recruits by POST compares the weight of a cruiser (3,500 pounds) with the weight of a bullet (240 grains). At 60 miles per hour, the cruiser has 196,875 foot-pounds of energy on impact with a stationary object, while a bullet fired from the muzzle of a .44 magnum revolver has only 970 foot-pounds of energy.

* Chase dynamics. Suspects fleeing the police are usually not hardened criminals. More often, they are frightened minor offenders whose flight is caused by the presence or actions of the officers.

It is important to establish through expert testimony that it is the activity of the police car in pursuit that usually causes the suspect vehicle to continue to operate at high speed. Reiter explained it this way: "I use the analogy of a rocket. The suspect you are chasing is the capsule. The officers and the vehicle represent the fuel booster. As long as the booster is behind, that capsule is going to keep going."

Experts can also testify that the experience of most police agencies is that the fleeing vehicle is usually driven by a traffic offender or misdemeanant who is irrationally afraid of being stopped. According to Alpert, who was a consultant on police pursuits for the Department of Justice, people try to escape because they are scared or because they don't want a traffic ticket. Others flee because they don't want their insurance to increase or because they don't want their parents to know they are driving the car. Or the car may be stolen and they may be joyriding. "Very few are involved in serious felonies," Alpert said.

Expert Van Blaricom says that it is well known by law enforcement officers that young people will often do foolish things when confronted by the police and that officers should not chase them just because they flee. Many experts agree that once officers turn off their lights and siren and reduce their speed, the pursued vehicle usually slows down.

Municipal liability

Experts are also essential to present the case against municipal defendants. The expert should testify about department policy on high speed chases, training requirements, supervision issues, and the necessity of record keeping and department analysis of pursuits.

Alpert has said that recruits have a "chase them till the wheels fall off" mentality at the beginning of their academy training. Although officers can be taught to make proper decisions about initiating pursuits, Alpert calls this learned response a "perishable skill" that requires frequent retraining to maintain. Unfortunately, many departments do not provide this.

Many departments also do not keep accurate records of pursuits, which makes it impossible to monitor the performance of individual officers or the department as a whole. This in turn encourages violations of policy. Reiter has noted that without proper reporting and supervision, a department's "operational policy" may depart significantly from any written policies it has adopted.

The statistics documenting the high risks of police chases are well known to police administrators and training officers. What is shocking is the continued willingness of many officers to engage in unwarranted pursuits in the face of widespread awareness in the police community itself of the likelihood of tragic consequences. This central fact must be brought home to the court and the jury in any trial involving a high speed chase.

Whatever the Supreme Court decides in Lewis, appellate judges can be expected to continue to remain hostile to constitutional claims in high speed chase cases. Police officials and experts, however, are highly skeptical about the value of many pursuits. The proper use of expert testimony to convey the reasons for this skepticism should markedly increase the chances of a decision that an officer's conduct was either deliberately indifferent or shocking to the conscience.

Notes

(1.) 98 F.3d 434 (9th Cir. 1996), cert. granted, 117 S. Ct.2406 (I997).

(2.) The National Highway Traffic Safety Administration reports 2,104 deaths in police pursuits between 1991 and 1996. or an average of 350 each year.

(3.) Brower v. County of Inyo, 489 U.S. 593 (1989); Hodari D., 499 U.S. 621 (1991).

(4.) Brower, 489 U.S. 593.

(5.) See MICHAEL AVERY, DAVID RUDOVSKY, KAREN BLUM, POLICE MISCONDUCT: LAW AND LITIGATION Section 2:17 (3d ed. 1996).

(6.) See, e.g., Evans v. Avery,100 F.3d 1033, 1038 (1st Cir. 1996), cert. denied, 117 S. Ct. 1693 (1997); Lewis, 98 F.3.D 434, 439-41; Williams v. City & County of Denver, 99 F.3d 1009, 1015 (10th Cir. 1996) reh'g granted (Mar. 3, 1997); Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en banc); Temkin v. Frederick County Comm'rs. 945 F.2d 716, 719 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992); Checki v. Webb, 785 R2d 534,538 (5th Cir. 1986). Only the Seventh Circuit has declined to recognize this cause of action. Mays v. City of East St. Louis, 123 F.3d 999 (7th Cir. 1997), reh'g en banc denied, 1997 U.S. App. LEXIS 26414 (7th Cir. Sept. 23,1997).

(7.) Fagan, 22 F.3d 1296; Medina v. City & County of Denver, 960 F.2d 1493, 1496 (10th Cir. 1992); Temkin, 945 F.2d 716; see also Boyle v. City of Liberty, 833 F. Supp. 1436 (W.D. Mo. 1993).

(8.) Lewis, 98 F.3d 434, 441.

(9.) Evans, 100 F.3d 1033,1038.

(10.) Fagan, 22 F.3d 1296, 1303; Temkin, 945 F.3d 716, 719; Checki, 785 F.3d 534; Williams, 99 F.3d 1009 (applying the shocks-the-conscience test, but not considering whether deliberate indifference or reckless disregard would have established a violation).

(11.) Although we have been advised repeatedly not to infer anything substantive from a dental of certiorari, it is hard not to conclude that the Supreme Court knows where it is headed on this issue. Within weeks of granting certiorari in Lewis, the Court denied certiorari in Evans, where the First Circuit had adopted the shocks-the-conscience standard and affirmed a judgment as a matter of law against the l plaintiff in a pursuit case.

(12.) For an excellent historical analysis and critique of the shocks-the-conscience standard, see Fagan, 22 F.3d 1296, 1309 (Cowen, J., dissenting).

(13.) An exception is Williams, 99 F.3d 1009, 1017 (conduct of the officer shocking to the conscience). The decision of the panel, however, is currently undergoing en banc review. It seems likely the Tenth Circuit will hold its decision until the Supreme Court rules in Lewis.

(14.) 945 F.2d 716.

(15.) This point may also be established by introducing into evidence the Training Key of the International Association of Chiefs of Police on high speed pursuits. For more information on this subject, write to the group at its headquarters, 515 North Washington Street, Alexandria, VA 22314, or call [phone].

(16.) See GEOFFREY P. ALPERT ET AL., The Constitutional Implications of High-Speed Police Pursuits Under a Substantive Due Process Analysis: Homeward Through the Haze, 27 U. MEM. L. REV. 599 (1997).

(17.) See, e.g., GEOFFREY P. ALPERT & LORIE A FRIDELL, POLICE VEHICLES AND FIREARMS: INSTRUMENTS OF DEADLY FORCE (1992). The statements attributed to Alpert are from his testimony in Hill v. City of Germantown, No. 70577-9 T.D. (Tenn., Memphis County Cir. Ct., 30th Judicial Dist., Feb. 24, 1997).

(18.) 123 R.3d 999.

(19.) 471 U. S.1 (1985).

(20.) There were 2,063 firearm-related justifiable homicides by police reported from 1991 to 1995.

(21.) Cosgrove, a 20-year veteran of the Miami, Florida, Police Department, testified for the plaintiff in Hill, No.70577-9 T.D.

(22.) Reiter, a former deputy chief of the Los Angeles Police Department, testified as the plaintiffs' expert in Evans, 100 F.3d 1033.

RELATED ARTICLE: High speed chases v. police shootings

* The rate at which people are injured in police chases is comparable to that in police shootings.

* High speed pursuits occur more frequently than police shootings.

* Most officers will be involved in a high speed pursuit at least once in their careers, but few will ever fire their sidearm at another person.

* The average officer is far more likely to injure an innocent citizen with a police cruiser than with a gun.

* It is rare for innocent bystanders to be shot by officers, but it is common for innocent victims to be injured in vehicular chases.

* Chases at high speed involve more unpredictable variables than most shooting scenarios do, and it is thus more difficult for officers to control the outcome.

--Lou Reiter, police practices expert and former deputy chief of the Los Angeles Police Department

Michael Avery practices with Perkins, Smith & Cohen in Boston.