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What Is A "Good" Pursuit?

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

When law enforcement officers are asked to define a "good" pursuit, their response is almost always, "a good pursuit is any pursuit where no one is hurt and no significant property damage occurs." While this could be a good starting point it is NOT the final answer. Consider the following true example:

Late one night a police department receives a call from a woman who says that her car has been stolen by her fifteen year old daughter. The woman also tells the police that the thief has two accomplices: a fifteen year old female and an eighteen year old male.

At about 2:00 a.m. the police spot the stolen car with the three occupants and attempt to initiate a stop. In response to the officer's lights and siren, the fifteen year old female driver begins to flee. The pursuit covers three (3) jurisdictions. After some twenty minutes of pursuit, with speeds at times well in excess of 100 miles per hour, the chase is brought to a halt. No one is injured and there is only very minor damage to the fleeing vehicle and one of the pursuing squad cars. The juvenile driver is taken into custody and the stolen car case is solved. Is this a "GOOD" pursuit? Most officers - and administrators - would say "yes!"

Later that morning the chief executive officer of the department employing the officers who actually brought the pursuit to a halt appears on two television news programs, and also makes the front page of the local newspaper. The chief executive praises his officers for a job well done. He states that his officers brought a dangerous high speed pursuit to a successful conclusion by lightly ramming the speeding car while traveling at speeds of 120+ miles per hour. The chief executive is very proud that his officers brought the incident under control without injury or significant property damage.

What is the problem here? Is there a problem? Without realizing it the chief executive has just activated a liability time bomb with an indeterminate time delay.

In order to understand how what appears to be a "good" pursuit has become a potential liability time bomb we need to review the incident for liability under the federal civil rights standards.

1. Do the officers have a lawful objective for taking action? Yes. The initiating officers had probable cause to believe that the driver of the car had committed a crime - initially stealing the car, and later fleeing an officer.
    
2. Do the officers have a foundation of authority? The original pursuing officers established probable cause for the stop within their jurisdiction while on duty. In this particular state, when the pursuit left the officer's primary jurisdiction they maintained lawful authority under their state's "fresh pursuit" doctrine.

   The officer's who actually did the ramming of the fleeing stolen vehicle were from another jurisdiction in which the pursuit was taking place. These officer's had authority in one of two ways: (1) the fleeing driver gave them probable cause within their own jurisdiction; or (2) they may have been functioning under legitimate mutual aid.

The distinction is important because if the officers are acting solely under the authority of their primary jurisdiction any workers' compensation, civil liability, property/equipment damage, etc. are the responsibility of their employer. However, if the officers are functioning under legitimate mutual aid it is arguable that ANY and ALL damages would be the responsibility of the governmental entity that requested the mutual aid. In other words, the risk of monetary loss may be effectively transferred to the initiating agency's governmental body by triggering the mutual aid statutes' risk transfer mechanisms.
 

3. What is the status of the driver? The "status" of the driver is important because it will, in part, dictate which (if any) of the federal civil rights standards of officer conduct apply. Here there are three (3) possible choices and applicable Amendments to the United States Constitution: (1) a convicted and incarcerated person (Eighth Amendment), (2) a pre-trial detainee (5th or 14th Amendment), or (3) a "free citizen" (4th, 5th, or 14th Amendment). Since, the fifteen year old female driver was not convicted and incarcerated and was not a pre-trial detainee, she was a "free citizen."
    

   Since she was a "free citizen," the next question is "has she been 'seized'" for purposes of the Fourth Amendment (to the United States Constitution) standard?

   A "seizure" by a law enforcement officer of a "free citizen" for purposes of the Fourth Amendment to the United States Constitution occurs either when: (1) the person submits to the officer's coercive law enforcement conduct, or (2) at the moment when the officer intentionally(1) lays hands upon the person.(2)

   In this case, had the driver pulled over when the officer activated the lights and siren, she would have been seized since she submitted to the officer's coercive authority. Because she did not "submit" to the officer's coercive authority by fleeing, the Fourth Amendment does not apply at this time.

   Why is this important? Because she did not submit when the officer activated the lights and siren she was not seized for purposes of the Fourth Amendment. Had she been involved in an accident during this pursuit, the federal civil rights standards of "objective reasonableness" under the Fourth Amendment would not apply. Rather, the federal civil rights standard binding the officer's conduct would be the "shock the conscience" standard of the Fourteenth Amendment. This standard requires a far lesser degree of care than "objective reasonableness."

   The Fourth Amendment standard of "objective reasonableness" basically states that an officer's seizure of a free citizen must be objectively reasonable under the totality of the circumstances as known by the officer at the moment the seizure occurs. This "reasonableness" is a balancing test between the government's legitimate interests and the "seized" person's interests in bodily security and privacy.

   The Fourteenth Amendment's "shock the conscience" standard basically asks the question: did the officer intentionally terrorize, or maliciously and/or sadistically take action against the person that would "shock the conscience" of the court?(3) Obviously, the Fourth Amendment's reasonableness standard is far more stringent than the Fifth/Fourteenth Amendment's "shock the conscience" standard.

So, was she seized? Eventually - yes. One of the officers intentionally rammed (lightly) the fleeing juvenile's car. At the moment the officer intentionally laid hands upon (rammed) the vehicle the officer seized the fleeing juvenile.(4) At this point the officer's seizure of the juvenile implicates the Fourth Amendment and thus the officer's actions must be within the Fourth Amendment's standard of "objective reasonableness."
 

4. Were the officer's actions in ramming the fleeing car "objectively reasonable?" In order to determine whether the officer's actions were objectively reasonable we will use two (2) analyses: (1) the Graham v. Conner(5) factor analysis (as modified by Chew v. Gates(6)), and (2) the fleeing felon analysis of Tennessee v. Garner(7).

       a. Graham v. Conner (as detailed by Chew v. Gates) asks the following
           questions:

1. Imminent Threat to Officers and/or Others - Is the person an imminent threat of injury to the officer and/or others? The greater the level of the threat the greater the level of the force that may be used.
    
2. Actively Resisting Arrest (or Detention) - If the person is actively resisting arrest then the officer may escalate the justified level of force response.
    
3. Circumstances are Tense, Uncertain, and/or Rapidly Evolving - ("Officer's legitimate anxiety factor") - Some incidents take hours to resolve, while others start and are over in seconds. The more tense, uncertain, and/or rapidly evolving the incident the higher level of force that will be judged to be reasonable.
    
4. Severity of the Crime at Issue - The more severe the crime committed the more force that an officer may justifiably use.
    
5. Attempting to Evade by Flight - Is the person attempting to evade arrest by flight? If yes, then this will assist the officer in justifying an escalating level of force.

In this case we would (subjectively) equate the force factors as follows:

Is the officer's use of force objectively reasonable under the Graham/Chew test? This question would ultimately be decided by a jury. But, by a preponderance of the evidence, the jury could easily answer this question in the negative.

Officer actions that would have been a seizure but probably would have been objectively reasonable may have included the appropriate use of hollow spike systems or non-deadman roadblocks. These techniques, if properly used, would have been less intrusive than the ramming.

The officers may also have utilized techniques that would not have resulted in seizures, such as terminating the chase since the officer's knew the identity and address of the fleeing juvenile driver.

     b. Tennessee v. Garner's five part test in determining whether the officers' actions
         were objectively reasonable:

1. Was the person fleeing from the officer?
2. Was the fleeing person a felon?
3. Was the officer's use of force the use of "deadly" force?
    
1. The Eleventh Federal Circuit Court of Appeals(8) has held "A gun is an instrument designed for the destruction of life or the infliction of injury, and death or injury will result if a person is struck by a bullet. While an automobile is capable of lethality, it is not designed to kill or injure; and even when automobiles strike each other, death and injury may well not result.(9)"
   
   However,
2. The Seventh Circuit has held that it is appropriate to evaluate the intentional striking of a fleeing motorcycle with a police car as the application of deadly force.(10)
    
3. The U.S. Supreme Court has held that a "deadman's roadblock" is the application of deadly force.(11)
    
4. Was the suspect either:
    
1. threatening the officer with a weapon capable of inflicting death and/or great bodily harm,
   OR
2. did the officer have probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm;
    
5. The use of deadly force by the officer is NECESSARY to prevent the suspect's escape; AND
6. The officer must give some WARNING of the imminent use of deadly force - if feasible.

   In this case the factors should by analyzed as follows:

• Was the person fleeing from the officer? Yes, the juvenile female was "fleeing" the officer.
   
• Was the fleeing person a felon? While this determination is state specific, it should remembered that in the context of Garner in allowing the use of deadly force upon a fleeing citizen we are only concerned with violent felonies or felonies against the person and not property felonies. The theft of the mother's car by the juvenile female was not a violent felony. Also, in the state where this occurred the status of the chase being a "felony" or a "misdemeanor" would be decided on whether the pursuing squad cars were "marked." In this particular state, "marked" means that the cars had to have decals and/or other side markings identifying them as law enforcement vehicles. The mere presence of lights and sirens are not sufficient to identify the cars as "marked."
   
• Was the officer's use of force the use of "deadly" force? Since there is case law on both sides, maybe. Adams states that the use of a squad car to intentionally ram a fleeing suspect's car is not the use of deadly force. Donovan states that the use of a squad car to intentionally ram a fleeing motorcycle is the use of deadly force. So, since under the analysis of the Fourth Amendment the use of deadly force would be decided by an analysis of the totality of the circumstances, then is the intentional ramming of a fleeing vehicle traveling at 120+ miles per hour with a fifteen year old female driver the application of deadly force? According to Chew this question would be decided by a jury. Obviously, a jury could find (by a preponderance of the evidence) that this application of force could be construed as deadly force.
   
• Was the suspect either:
1. threatening the officer or another with a weapon capable of inflicting death and/or great bodily harm,
   
   No. The fleeing driver was not threatening the officer or another with a weapon capable of inflicting death and/or great bodily harm. OR
    
2. did the officer have probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm;
   
   No. The officer did NOT have probable cause to believe that the juvenile female driver had committed a crime involving the infliction or threatened infliction of serious physical harm.
    
• The use of deadly force by the officer is NECESSARY to prevent the suspect's escape;
  
  No. It was not NECESSARY for the officer to use deadly force to prevent the driver's escape. Under the Garner analysis, "necessary" is construed as being "necessary" to bring the person to prosecution. Since the officers knew the identity of the fleeing driver, it was not "necessary" to use deadly force to bring the juvenile to prosecution.
  
  AND
• The officer must give some WARNING of the imminent use of deadly force if feasible.
  
  No. The officer did not give a warning of the imminent use of deadly force. Also, it was not feasible to do so because of the speeds involved.

So, under the Garner fleeing felon analysis if the officer's ramming the car at high speeds is construed as the application of deadly force, then this use of force (seizure) is clearly "objectively unreasonable." The ramming officer has now crossed the line and has violated the fleeing driver's Fourth Amendment Constitutional right to be free from unreasonable seizures.

The Chances of Liability? Since there was only minor property damages involved in the incident the chances of being involved in litigation are very minor. So, what is the problem?

The problem is in the foregoing example the officers clearly violated the fleeing driver's Constitutional right to be free from unreasonable seizures. The chief executive then ratified and actually encouraged and praised this unconstitutional use of force in a public forum.

Six months has now elapsed. The agency's officers are involved in a similar incident to the previous example. Only this time two (2) juveniles are killed, one (1) juvenile sustains significant injuries rendering the child a quadriplegic, and one (1) juvenile sustains severe head injuries and is rendered brain dead.

Again, the seizure is clearly unconstitutional. Therefore, the officers violated the Fourth Amendment rights of these four juveniles - just as in the previous example. This time because of the level of injuries the case is presented to a jury. The jury not only finds against the officers but also against the agency executive in his personal capacity, for extensive punitive damages, and also against the employing governmental entity.

The chief executive activated the time bomb by being "deliberately indifferent" to the Constitutional rights of the juveniles. The chief executive, through his condoning - actually praising (ratifying) - the officer's actions in the first example established a policy or custom that was the driving force behind the Constitutional rights deprivations of the four juveniles in the second incident.(12) This opened the door to increased liability exposures for the agency executive personally, the employing agency, officers themselves and extensive punitive damages.

1. No seizure occurs if a fleeing suspect unexpectedly loses control of his vehicle and crashes; a mere show of authority (flashing lights and continued pursuit) without an intentional acquisition of physical control is insufficient to give rise to a seizure. Brower v. County of Inyo, 489 U.S. 593, 595-96, 109 S.Ct. 1378, 1380-81, 103 L.Ed.2d 628 (1989). Also note that an officer's accidental running over a motorcyclist did not constitute a "seizure" for purposes of determining whether the officer violated the motorcyclist's civil rights. Campbell v. White, 916 F.2d 421, 423 (7th Cir. 1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1314, 113 L.Ed.2d 248 (1991). 
2. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 111 L.Ed.2d 690 (1991); Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). 
3. Fagan v. City of Vineland, 22 F.3d 1296 (2nd Cir. 1994) - 14th Amendment - Shocks the Conscience Test - "Where a police officer uses a police vehicle to terrorize a civilian, and he has done so with malicious abuse of official power shocking the conscience, a court may conclude that the officers have crossed the 'constitutional line.'" Fagan at 1308. See also, Temkin v. Frederick County Comm'rs., 945 F.2d 716 (4th Cir. 1991), cert denied, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992). 
4. If a police cruiser "had pulled alongside the fleeing car and sideswiped it, producing the crash then the termination of the suspect's freedom of movement would have been a seizure." Brower, 489 U.S. at 597, 109 S.Ct. 1381. 
5. Graham v. Conner, 490 U.S. 386, 104 L.Ed.2d 443, 109 S.Ct. 1865 (1989). 
6. Chew v. Gates, 27 F.3d 1432 (9th Cir. (Cal.) June 27, 1994). 
7. Tennessee v. Garner, 471 U.S. 1, 85 L.Ed.2d 1, 105 S.Ct. 1694 (1985). 
8. Adams v. St. Lucie County Sheriff's Dept., 998 F.2d 923 (11th Cir. 1993), (Edmondson, J., dissenting), rev'd, 998 F.2d 923 (11th Cir. 1993)(en banc). 
9. Adams, 962 F.2d at 1577. 
10. Donovan v. City of Milwaukee, 17 F.3d 944, 949-50 (7th Cir. 1994). 
11. Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). 
12. City of Canton, Ohio v. Harris, et al, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See also, Claims of negligent pursuit and negligent selection and training were held actionable. (applying District of Columbia law) Skipper v. Prince George's County, 637 F.Supp. 638 (D.D.C. 1986).