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Law Enforcement, Corrections,
Private Security, and Civilian
Risk Management

Often Overlooked Risks of
Law Enforcement Vehicle Operations

by Michael A. Brave, J.D., M.S., C.P.S., C.S.T. and Jeffrey R. Edblad, J.D.
(© Copyright 1995 by LAAW International, Inc. All rights reserved.)

Whenever risk managers contemplate law enforcement vehicle operations, many negative descriptors immediately come to mind: risky, expensive, litigation magnet, difficult (if possible) to control, and a public relations nightmare among others. A review of a large database of law enforcement losses will clearly illustrate that vehicle operations will create the highest frequency of claims and the highest degree of severity of losses.

A few who consider vehicle operations shallowly limit their inquiries to "pursuits." This narrow view overlooks many potential controllable risk areas. This article will address some more esoteric areas of law enforcement vehicle operations. Areas of vehicle operations where the risk manager can have a positive influence. Several areas listed below may seem incredibly basic. It is because of the appearance of being "basic" that they are so easily overlooked. However, the authors know of recent instances in which each item listed has been violated and resulted in losses - third-party liability, workers' compensation expenditures, overtime fill-in costs, etc.

Vehicle Operations Policy and Training

It should be obvious that law enforcement agencies must have competent vehicle operations policies, training, and supervision. The basics of these three topics alone could easily consume this periodical, and many more. It is not the purpose of this piece to delve into the basics of these areas. Instead, this article will focus on specific areas of concern.

Avoiding Unreasonably Restrictive Policies

Any policy should start with a clear and unambiguous understanding of the federal standards and the applicable state statutory/case law standards. Once these standards are determined, and used as the basis for policy development, a policy developer should be careful not to inadvertently raise this standard without adequate forethought and sufficient reason(s).

Some vehicle operations policies are unduly restrictive and may result in heightening the standard of legal accountability.(1) The raising of the state standard via policy may result in increased liability exposures.(2) If an incident occurs and the officer's actions were acceptable under state law, but, the officer violated the employer's policy, liability (under state law principles) may attach.

Pursuits - Teaching the "Cognitive" (as well as the "Skill")

Most law enforcement employers train their officers in the "how" (the driving skills) of vehicle operation. However, many employers fail to train their officers in the "when" (the cognitive decision making skills) of vehicle operations. If 100 pursuits that ended in major negative consequences were carefully examined, and the question was asked:

How many negative consequences were created by the "how" (the inability of the officer to manipulate the vehicle - the skills of driving) of vehicle operations, versus how many negative consequences were created by the "when" (the thinking, decision making skills) of vehicle operations?

It is the "when" that would be found to create the vast majority of the problems, not the "how."

This analysis displays a very valuable lesson: officers must be adequately trained in making the decisions that decide their actions involving vehicle operations. Once officers have a strong understanding of the factors upon which their decisions will be made, they can avoid many liability pitfalls that a lack of this training will engender.

Do not Allow Officers to Do Functions for Which They Have Not Received Training

Some agencies allow their officers to perform skills/tasks for which their officers have not received adequate training. This is an invitation to liability exposure. Officers must be adequately trained in their core tasks(3), and vehicle operation is an officer's core task.

This aspect of liability will most often come into play when officers engage in a vehicle operation resulting in the "seizing" of a free citizen. A "seizure" usually occurs when officers intentionally : (1) ram a vehicle, (2) force a vehicle off the road, (3) use spike systems, and/or (4) set up a road block. In these instances an officer is "seizing" the person for purposes of the standard of the Fourth Amendment to the United States Constitution. These activities may be considered "seizures" because a free citizen is "seized" under the Fourth Amendment either when: (a) the person submits to the officer's authority, or (b) when the officer intentionally lays hands upon him/her.(4) In the four actions listed the officer is intentionally bringing forces to bear to lay hands upon the free citizen. The standard set forth by the Fourth Amendment is the "objective reasonableness" standard. If the officer's actions are "objectively unreasonable" and the officer has not been adequately trained in the foreseeable task that was performed then the officer's employer may be said to have been "deliberately indifferent" to the Constitutional rights of the person whose rights were violated, and it was this "deliberate indifference" that was the moving force behind the rights deprivation.

Therefore, if the officer's employer is unwilling, or unable to adequately train its officers, the employer must be careful to avoid circumstances where the officer's lack of training is likely to result in a person being deprived of his/her Constitutional rights.

Often Overlooked Training: Parking the Vehicle and Placement of the Persons Stopped

Two areas in which the authors have seen numerous litigation involves: (1) where and how officers park their vehicles - with or without emergency equipment functioning, and (2) where officers place people who are involved in the traffic stops.

When officers park vehicles they must be aware of the potential traffic complications that their vehicle placement is likely to cause. While this may seem very basic, there have been numerous accidents resulting in litigation losses because of a breaching of this most basic teaching. If during a traffic stop an officer stops his/her vehicle so that an accident is likely to occur then the officer, and possibly the employer, will probably have created liability.

Also. an officer's placement of people during a traffic stop can create potential liability. There have been numerous injuries and deaths partially caused by officers positioning of people during traffic stops. In one recent case, two officers each in their own squad car stopped a car containing two men and arrested them. The officers placed the men between the stopped cars while handcuffing them. Another driver hit the rear of the rearmost squad car and pushed it into the primary squad car which, in turn, was pushed into the rear of the arrestees' car. All four men were injured when caught between the crashing primary squad and the arrestees' car. It would be correct in stating that the individual who primarily caused the injuries was the driver that struck the back of the rearmost squad. The problem, however, is that when the culpability or blameworthiness is analyzed under the concept of joint and several liability, the officers may end up being financially responsible for all of the injuries incurred. This does not include the additional costs incurred in this incident, such as workers' compensation paid to the two injured officers, damaged squad cars, and the overtime costs incurred filling in for the injured workers.

Occupant Restraint

While watching the television shows "Cops" or "The Real Stories of the Highway Patrol" count the number of times an officer secures an arrestee with seatbelts. Or, for that matter the number of times that the officer him/herself "buckles up?" It may be a surprise that more department resources (human and otherwise) can be conserved by a department carrying out a competent occupant restraint protocol than virtually any other activity an agency can do. Also, this protocol can be enacted at virtually no cost and with minimal effort.

The use of occupant restraints can save lives and reduce injury severity. The tragic loss of an officer that could have been avoided had the officer properly used the available occupant restraint systems is inexcusable. Research completed by the International Association of Chiefs' of Police (IACP) and the National Highway Safety Traffic Administration (NHTSA) has shown that more officers are killed and injured in motor-vehicle related incidents than any other law enforcement activity. These losses (death and injury) directly translate into economic losses (death associated costs, workers' compensation, officer turnover, overtime, etc.). Many of these losses could be eliminated or reduced by the adoption of an adequate occupant restraint protocol.

The issue of occupant restraint also applies to anyone who is a passenger in a law enforcement vehicle. If an arrestee is not restrained and is injured in an accident (s)he may have a viable cause of action against the driver and his/her employer. Liability may also attach if anyone else in the officer's vehicle sustains injury due to a failure to use available restraint devices.

The IACP and NHTSA have combined their resources to develop several occupant restraint related programs, including an Occupant Restraint Risk Management Program. These programs graphically show the need for occupant restraint devices and the potential consequences for failure to use these devices. Information on these programs along with no-cost video training tapes, manuals, and other materials can be obtained by contacting: Officer Robert Wall, Traffic Safety Specialist, the International Association of Chiefs' of Police, 515 North Washington Street, Alexandria, Virginia 22314-2357, phone - (800) THE-IACP.

To set up a competent Occupant Restraint Risk Management Program and avoid the potential liability pitfalls:

  1. Contact Robert Wall and get the training tapes, manuals, posters, etc. (all at no cost)
     
  2. Develop and carry out a competent occupant restraint policy. [The IACP/NHTSA materials include a sample policy.]
     
  3. Provide training to all officers on the importance of occupant restraint.
     
  4. Develop a program to get child restraint seats that can be carried in each patrol vehicle. Many agencies have sponsored fund raisers, received donations from area businesses, and received discounts from sellers to purchase child safety seats for use in patrol vehicles.

The Importance of Knowing Your State's Liability Shielding

Some officers do not fully understand the liability shielding mechanisms of their state laws. This lack of knowledge can result in unnecessary liability exposures. This principle often comes into play when an officer fails to use available, or statutorily required emergency equipment while: (1) stealth following a suspected wrongdoer, (2) stealth closing in on a suspected wrong doer, or (3) responding to an emergency.

In each of these cases if the officer is properly using, as dictated by state law, the vehicle's emergency equipment, then the officer will probably have strong liability shielding if an accident occurs.

Controlled Deflation Systems

Once an officer initiates a pursuit, the likely potential outcome of the pursuit is relatively limited: the fleeing vehicle stops or breaks down; escapes; hits something; and/or the pursuing officer(s) hits something. None of these potential outcomes are the ideal. There is a relatively new product on the market that gives officers another option: the controlled deflation system. These systems, commonly called "spike systems," are creating a new conclusion to pursuits.

The spike systems are really quite simple. They consist of a series of hollow spikes placed in the path of the fleeing vehicle (not motorcycles). Once the vehicle travels over the spikes, the hollow spikes pierce the tires and, since the spikes are hollow, they do not result in blowing out the tires. Instead, they allow for a gradual deflation of the tires. This gradual deflation encourages the driver to come to a controlled stop. In the event the driver refuses to stop, the flattened tires will quicken the eventuality that the driver's vehicle will become inoperable.

One new spike system that is enjoying great success is manufactured by "STOP Stick, Inc."(5) The "STOP Stick" system consists of three three-foot lengths of triangular cardboard. Inside each section are many hollow spikes with Teflon tips. An officer can deploy the "STOP Sticks" within about ten seconds.

To date, there have been over seventy successful stops using the "STOP Sticks." Some stops involved vehicles traveling well over 100 miles per hour when they encountered the "STOP Sticks." To date, none of the STOP stick deployments have resulted in any injury or loss of vehicle control.

"Objectively Reasonable" Use of Roadblocks

After the United States Supreme Court case of Brower v. Inyo(6) many law enforcement agencies are under the mistaken belief that all roadblocks constitute deadly force and therefore their use is virtually forbidden. This could not be farther from the truth since what the Brower Court said was that the intentional establishment of a roadblock results in a "seizure" of the person and will be governed by the Fourth Amendment's "objective reasonableness" standard(7). Under the federal standard, as long as the roadblock is "objectively reasonable" there will be no Fourth Amendment violation.

KNOW the Definition of a Good Vehicle Operation?

Some law enforcement executives believe that a "good" pursuit, or other vehicle operation is one that does not result in a crash or other major disaster. Following this philosophy is similar to setting a time bomb with an unknown detonation time and then patiently waiting for the bomb to explode. A "good" or a "bad" vehicle operation is decided by whether the operation conformed to federal standards, state standards, department policy and training. Despite a vehicle operation's outcome, the operation's conformance to standards must be carefully analyzed and documented.

Each potentially damaging vehicle operation (pursuits, roadblocks, spike system deployment, accident, etc.) must be analyzed. This analysis is not to fix blame or berate officers. Rather, it is to act as a real-life field study to measure the effectiveness of the department's policy, to decide whether any changes need to be made to the department's training program, to look for loopholes in the department's supervisory oversight system, to monitor the efficiency of dispatch, to appraise the capabilities of the agency's equipment, etc.

Collecting and Preserving the Evidence

In many officer involved vehicle accidents, people are hurt, and property is damaged. When these incidents occur, some people will begin pointing their fingers at the officers and their employers. In several cases that the authors have been involved with, evidence was either not collected or was not properly secured to maintain a proper chain of evidence. This apathy is indefensible. In the last few pursuit cases the authors have been involved with, in a full 80% of those cases the dispatch tapes were unavailable. Unavailable because they were never kept, they were not placed in a protective evidence chain, or they were simply lost in the shuffle. Some of these cases even involved multiple deaths, and the tapes were still not kept.

So what do we do? Consider the following:

  1. As noted above, each potentially severe vehicle operation should be reviewed and analyzed. This procedure aids in collecting and preserving evidence. When the incident reviewers identify potentially litigation engendering incidents they have a responsibility to begin collecting and preserving evidence.
     
  2. An upper level law enforcement executive should be given the responsibility for collecting and preserving the evidence. This responsibility should be reduced to detailed writing - a comprehensive policy.
     
  3. The procedure needs to have a reporting process. The reports should go to the chief or sheriff with a copy to the risk manager.

Conclusion

There is much that a risk manager can do to reduce the risks associated with law enforcement vehicle operations. It is only with indepth forethought and action that the potentially negative consequences of vehicle operations can be reduced. After the incident occurs is not the time to begin thinking about "what could I have done to prevent this?" No one wants to be given the responsibility to have to call the survivors of someone who has lost their life in a vehicle operation related mishap that could have been prevented by having a vehicle operations policy coupled with the cognitive decision making process ("when") along with driving skills ("how") of vehicle operations. Do not let it be you.

  1. Annot. Municipal Corporation's Safety Rules or Regulations as Admissible in Evidence in Action by Private Party Against Municipal Corporation or it Officers or Employees for Negligent Operation of Vehicle, 82 A.L.R.2d 1285 (1978). 
  2. See generally Murphy v. City of Minneapolis, 292 N.W.2d 751 (Minn. 1990); Moore v. City of Columbia, 326 S.E.2d 157 (1985); DeLong v. City and County of Denver, 530 P.2d 1308 (Colo. App. 1975); and Dillenbeck v. City of Los Angeles, 446 P.2d 129 (Calif. 1968). 
  3. City of Canton, Ohio v. Harris, et al, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); and Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 275, 116 L.Ed.2d 227 (1991) 
  4. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 111 L.Ed.2d 690 (1991) 
  5. STOP Stick, Inc.
    719 Bielby Road
    Lawrenceburg, Indiana 47025
    Phone - (800) 537-0102
    Local - (812) 537-1116
    Fax - (812) 537-1011 
  6. Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) 
  7. Annot. Municipal or State Liability for Injuries Resulting from Police Roadblocks or Commandeering Private Vehicles, 19 A.L.R.4th 937 (1983). See generally See 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); City of Pittsburgh v. Jodzis, 147 Pa.Commw. 234, 607 A.2d 339 (1992), allocatur denied, 622 A.2d 1378 (Pa. 1993); Cross v. Clovis, 107 N.M. 251, 755 P.2d 589, 592 (1988); Myers v. Town of Harrison, 438 F.2d 293 (2nd Cir., cert. denied, 404 U.S. 828, 92 S.Ct. 64, 30 L.Ed.2d 57 (1971); and Langley v. City Amarillo, 579 S.W.2d 351 (Tx.Ct.App. 1979).