E-Mail LAAW
(click here)

Call LAAW:
(800) 944-4485
(877) 944-4485

One Answer to Pursuits - Controlled Deflation Devices

by Michael A. Brave and Jeffrey R. Edblad
(© Copyright 1996 by LAAW International, Inc. All rights reserved.)

Since the early days of society law enforcement officers have been pursuing evil doers. Once the pursuits moved into the realm of motor vehicles capable of high speeds these pursuits became potentially very hazardous. When this potentially hazardous activity is coupled with the usual limited options for pursuit conclusion, most of which are unacceptable, the pursuit outcome can be devastating. We do not want innocent persons, officers, and/or fleeing drivers to be hurt or killed. We do not want violators to get away with their crimes and escape justice. We do not want to be embroiled in litigations stemming from pursuits that end in tragedy. So, it is important to increase the potential options for bringing a pursuit to a reasonably acceptable conclusion. One option in dealing with these fleeing vehicles is the use of controlled deflation devices.

Controlled deflation devices are placed in the paths of fleeing vehicles to cause deflation of the vehicles pneumatic tires without unreasonable loss of vehicle control. The devices insert hollow tubes into the tires when the vehicle rolls over the device. Because of the flat tires, within a short distance the fleeing vehicle is forced to either abort the escape and stop, or at least significantly reduce its speed.

With the positives of the use of controlled deflation devices coupled with the relative inexpensiveness of the devices as compared to the final average costs of a pursuit, it is no surprise that many law enforcement agencies are acquiring and issuing the devices to their officers. In deciding which controlled deflation devices to acquire an agency should look very closely at several safety factors built into the devices, potential dangers associated with a particular device, any special safety equipment needed for a particular device, ease and speed of deployment, etc. The safer and easier a device is to use the greater the number of risks that will be effectively nullified. Remember, we are talking about risks including, but not limited to: injured officers, workers' compensation injuries, injured innocents and suspects, damaged equipment, lawsuits, etc.

Before a law enforcement agency adopts controlled deflation devices the agency must first adopt a competent policy, provide suitable training, and provide acceptable levels of supervisory oversight. In developing the policy the agency should be careful not to engage in the "fear of failure syndrome" in which an agency's aim for perfection can lead to the creation of excessively high standards of care. This phenomenon can also be caused by "litigaphobia" - the unreasonable fear of litigation. Some law enforcement agencies have adopted unreasonably high standards of care in the areas of use of force, deadly force, pursuits, and roadblocks. The agencies who have adopted these unreasonably high standards have decided that it is better that officers do not do their jobs and we do not get sued, rather than setting a reasonable standard of care that allows officers get the job done (legally) but, face more litigation. These agencies that manage based upon "suability," the ability to be sued even if the lawsuit is frivolous are doing a disservice to their communities and their officers. It is a better tact to manage toward actual liability or culpability rather than suability.

While an agency should not adopt unacceptably high standards of care, an agency does need to adopt an appropriate standard of conduct and that standard needs to be an acceptable one from both a risk viewpoint as well as a useability/reality viewpoint. In order to determine the appropriate standard for the use of controlled deflation devices we must first turn to federal law. Under federal law, the use of controlled deflation devices will almost always be construed as a "seizure" under the Fourth Amendment to the United States Constitution.(1) Since the fleeing vehicle will be seized when it impacts the device then the applicable standard for use of the device will be the "objective reasonableness" standard. The objective reasonableness standard states that an officer's seizure, of a free person, must be "objectively reasonable" under the "totality of the circumstances(2)" "at the moment(3)" the seizure occurs. The "totality of the circumstances" includes an analysis of: (1) is the person a threat to the officer and/or others, (2) is the person actively resisting arrest, (3) are the circumstances tense, uncertain, and/or rapidly evolving, (4) what is the severity of the crime at issue, and (5) is the person attempting to escape seizure by escape/fleeing.

While the use of the device will almost always be considered a Fourth Amendment "seizure," the use will, under normal use, not be considered the application of deadly force that would implicate the Tennessee v. Garner fleeing felon test in which deadly force may only be used in the defense against imminent deadly force or when an officer has probable cause to believe that the fleeing person has just committed a violent felony, it is necessary to use deadly force to bring the person to prosecution, and the officer gives some warning of the imminent use of deadly force if feasible. However, the use of the devices could be "deadly force" if the devices were used under circumstances where death or serious bodily harm/great bodily harm would be intended or likely to result. These circumstances could include the use of the device on a fleeing motorcycle when the motorcycle is traveling at anything other than slow speed, when the device is used on an automobile under circumstances (speed, terrain, etc.) where it is likely or intended that the automobile would crash to an extent likely or intended to cause death and/or great bodily harm as a result of the contact with the device.

It is important to note that even if the devices were used in such a manner that their use WOULD be considered the application of deadly force, this does not necessarily mean that the use is "objectively unreasonable." There could be any number of scenarios where the application of deadly force would be justified against the fleeing driver. An example of when the use of the device would constitute an objectively reasonable use of deadly force when be when the driver of a motorcycle is traveling down a city street at a high rate of speed and discharging a firearm at pedestrians. Of course any use of the devices that would be construed as deadly force would be incredibly scrutinized and the use would have to be justified.

Once the federal standard has been established, then the standard must be measured against any applicable state law. The state laws that would have to be examined would be laws pertaining to use of force, pursuits, and roadblocks. If the state law standard is MORE restrictive than the federal law, the chosen standard would have to be modified to comply with the higher standard. If the state law standard is LESS restrictive than federal law, then the less restrictive standard would be irrelevant since an officer may not violate the federal standard.

Once the federal standard and the state standard have been compared and differences resolved, the agency must now decide, based upon pertinent community factors, whether to raise the standard even further than federal law as modified by a more restrictive state law. An agency may wish to raise the standard because of dense population, because of roadway types and conditions, etc.

Once the final standard, the SINGLE standard, has been developed it is now time to develop a policy that clearly defines the officer's actions in the use of the devices. In developing this policy the agency must be cautious in ensuring that the policy provisions will be the actual operational aspects followed on the street. Once the policy is developed and disseminated the officers will have to receive training(4). The training in controlled deflation devices does not require a great deal of time. However, it is very important to include officer safety issues in the device training program. Officers have been seriously injured and killed in relation to deploying the devices, where the injuries were not caused by the devices but by being in close proximity to the device deployment. The device manufacturers usually provide lesson plans, training manuals, video tapes, and testing materials for the department to use in implementing the training program.

After the policy is in place and the training completed the controlled deflation devices are ready for deployment. Once an incident occurs where the devices were used it is important to carefully review the incident to determine whether there is a need to modify or enhance the policy, the training, and/or the supervision. It is not enough that the devices were used, the evil doer was caught, and no one was injured. Even with a 100% positive outcome it is still necessary to carefully review the incident to take maximum advantage of the "ILV" (Incident Learning Value).

One other aspect that needs to be addressed is how do we pay for the controlled deflation devices and how do we replace them. In acquiring the devices consider getting financial assistance from insurance risk pools, organizations such as MADD (Mothers Against Drunk Drivers), the Chamber of Commerce, and others. In replacing the controlled deflation devices, try to get the court to order the fleeing person who had to be stopped with the use of the devices to pay a penalty for the replacement of any device used.

The controlled deflation devices can add a significant element into the positive outcome of a pursuit. Just think about if every law enforcement squad car (state police, county sheriffs, city police, etc.) were equipped with the devices? In most areas of the country how long would it take to get the devices deployed? Let's work together to curb the tragedies of pursuits.

1. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 111 L.Ed.2d 690 (1991); Graham v. Conner, 490 U.S. 386, 104 L.Ed.2d 443, 109 S.Ct. 1865 (1989); Tennessee v. Garner, 471 U.S. 1, 85 L.Ed.2d 1, 105 S.Ct. 1694 (1985); and Brower v. Inyo, et al, 489 U.S. 593, 103 L.Ed.2d 628, 109 S.Ct. 1378 (1989).
2. See Graham, and Chew v. Gates, 27 F.3d 1432 (9th Cir. (Cal.) June 27, 1994).
3. Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988); Menuel v. City of Atlanta, 25 F.3d 990 (11th Cir. 1994); Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988); Drewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993); Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991); Powell v. Fournet, 846 F.Supp. 1443 (D.Colo. 1994); James v. Chester, 852 F.Supp. 1288 (D.So.Carol. 1994).
4. City of Canton, Ohio v. Harris, et al, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)