Police Pursuits After Scott V Harris: Far from Ideal? by Geoffrey P
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Ideas in POLICE American FOUNDATION Number 10 Policing June 2008 Police Pursuits After Scott v Harris: Far from Ideal? By Geoffrey P. Alpert and William C. Smith t approximately 3 a.m. per hour, crashed into the milk Long, and at the trial in October on February 10, 1941, wagon, seriously injuring Mr. 1949 the jury rendered a verdict A Milton Elmore was Elmore. Both Mr. Elmore and for $588.83 in favor of the milk working as he drove a horse the Ideal Pure Milk Company company for its property damage drawn, lighted milk wagon sued Officers Chambers and and a verdict for $10,588.85 northwardly along Center Street in Owensboro, Kentucky, and began to turn left in a westerly Ideas in American Policing presents commentary and insight from leading crimi- nologists on issues of interest to scholars, practitioners, and policy makers. The direction onto Fourth Street. papers published in this series are from the Police Foundation lecture series of the A few moments earlier, police same name. Points of view in this document are those of the author and do not officers Robert Chambers and necessarily represent the official position of the Police Foundation. The full series is available online at http://www.policefoundation.org/docs/library.html. Jack Long had observed a © 2008 Police Foundation. All rights reserved. parked car occupied by Wren Shearer, a person whose “bad Geoffrey P. Alpert is a professor in the Department of Criminology reputation had become known to and Criminal Justice at the University of South Carolina. He has 1 them.” Shearer sped off to avoid been conducting research on high-risk police activities for more investigation by the police, and than twenty-five years, and is a nationally recognized expert on before Mr. Elmore completed police violence, pursuit driving, and training. his left turn, Shearer, who was William C. Smith, an attorney, served as the legal advisor for the fleeing at approximately 75 miles NHTSA task force that produced the original Law Enforcement Driver Training Reference Guide. He has written extensively on 1 Chambers v Ideal Pure Milk Co., police pursuit liability and risk management issues. 245 S.W.2d 589 (Ky. App. 1952) at 590. in favor of Mr. Elmore, as have changed dramatically, but 70 percent of all pursuits resulted compensation for his injuries. that transformation may have, in a crash, 50 percent of all The verdict was challenged by in fact, come full circle with the pursuits ended in serious injuries, the officers, and on appeal to the 2007 United States Supreme and 20 percent of pursuits Kentucky Supreme Court the trial Court decision in Scott v Harris.3 resulted in a death (Fennessy, court’s decision was reversed. The At a minimum, a number of the Hamilton, Joscelyn, and Merritt supreme court noted: “Charged judicial parameters thought by 1970). Unfortunately, the as they were with the obligation many observers to have been report relied more on anecdotal to enforce the law, the traffic reliably established have been information than quantitative laws included, they would have called into question, and the data. Nonetheless, the report been derelict in their duty had operational management of police captured more than the simple they not pursued him. The police pursuit operations has again been passing interest of those were performing their duty when thrust to the forefront as a matter already concerned with police Shearer, in gross violation of his of concern for law enforcement emergency vehicle operations. duty to obey the speed laws, agencies (Lum and Fachner, A second generation of research crashed into the milk wagon. To forthcoming). on pursuits was initiated in the argue that the officers’ pursuit 1980s and relied on quantitative caused Shearer to speed may be Where Have We Been? data from police agencies. The factually true but it does not California Highway Patrol follow that the officers are liable Since 1960, police departments (CHP) led the effort, collecting at law for the results of Shearer’s have dramatically changed the a variety of information from negligent speed. Police cannot ways in which they respond to law enforcement agencies in be made insurers of the conduct fleeing suspects. During the California, and reported that of the culprits they chase. It is 1960s and 1970s, there was very 29 percent of pursuits resulted our conclusion that the action of little attention paid to the pursuit in a crash, 11 percent ended in the police was not the legal or issue, other than with respect injury, and 1 percent resulted in a proximate cause of the accident, to officer safety concerns. In death (California Highway Patrol and that the jury should have other words, police departments 1983). While the CHP study been instructed to find for the trained officers how to drive and was fraught with methodological appellants.”2 provided them with defensive and shortcomings, it has been The Chambers decision was emergency driving skills, the focus recognized as the first of a series handed down in 1952 and clearly being on technical proficiency. of studies that, ultimately, would indicated that while the actions Little attention was given to learn from the shortcomings of of the officers most likely caused the crashes, injuries, and deaths the earlier studies and improve the offender to flee, they should involving innocent bystanders over time. Whereas Physicians not be held legally responsible whose sole transgression was, for Automotive Safety concluded for the actions of the fleeing typically, being in the wrong that pursuits were extremely suspect, even though he crashed place at the wrong time. During dangerous and reform was into and injured an innocent the late 1960s, however, a necessary to save lives, the bystander. During fifty-six years watchdog group called Physicians CHP study concluded that since the Chambers decision, for Automotive Safety, comprised “[a] very effective technique in the laws relating to police of emergency room physicians, apprehending pursued violators emergency and pursuit driving released a report asserting that may be simply to follow the violator until he voluntarily stops 2 Ibid. at 590–591. 3 127 S. Ct. 1769 (2007). or crashes” (1983, 17). —— 2 —— In 1986, Alpert and Anderson concomitantly, police departments Technique (PIT) maneuver,6 the published an article, The Most began to modify their policies federal courts would evaluate Deadly Force: Police Pursuits, and to restructure their training the officer’s action as involving which sought to sharpen the to address the awareness. a “seizure” for purposes of focus of law enforcement and Lawsuits also played a major a Fourth Amendment claim. academic observers on the part in modifying police policies The courts typically worded inherent risks and potential and practices where vehicular their analyses in the context of dangers of police pursuits. During pursuits were at issue. A major Tennessee v Garner 7 and Graham the same timeframe, a series of litigation trend evolved such v Connor.8 With the advent of studies was published, following that whenever a person, whether the 1990s, through its decisions the CHP research model but suspect or innocent third party, in Brower v County of Inyo 9 and using improved methodology was injured by actions arising County of Sacramento v Lewis, 10 and sampling techniques (Alpert from a police pursuit, suit was the U.S. Supreme Court provided and Fridell 1992; Alpert, Kenney, almost certain to follow. And in a barely translucent analysis of Dunham, and Smith 2000). many instances the filing involved the liability parameters of police The findings from these second- some allegation of violation of a pursuits under federal civil rights generation studies highlighted federally secured right that the law. The decisions in Brower and the dangerous nature of pursuits plaintiff sought to redress under Lewis did little to provide any and the risks posed to both Section 1983.4 While countless type of operational guidance, police and citizens. The empirical civil rights suits were filed, with however, to law enforcement research debunked two common varying degrees of plaintiff agencies legitimately seeking to myths: most fleeing suspects are creativity, courts throughout the balance a need to apprehend dangerous violent felons; and if country responded to them in against a requirement to protect the police don’t chase suspects, an overall inconsistent fashion, public safety in pursuits. But they all suspects will continue to flee, applying different standards, did spawn a cottage industry thereby greatly endangering public interpreting even agreed- safety. What emerged from the upon standards differently, and 6 A Pursuit Immobilization research findings was the fact handing down widely varied Technique (PIT) is a maneuver that that most suspects who flee the rulings on highly similar factual begins when a pursuing vehicle pulls alongside a fleeing vehicle so that either police were young males who had patterns. By the early 2000s, front quarter panel of the pursuing committed minor offenses and the only reasonably sure bet in vehicle is aligned with the target vehicle’s who had made very bad decisions civil rights based pursuit actions rear quarter panel. The pursuing officer is required to make momentary contact to flee. Additionally, the research appeared to be that if a police with the target vehicle’s rear quarter supported the finding that if officer used a physical “means panel, accelerating slightly and steering the police were to restrict their intentionally applied”5 to stop a into it very briefly. The effect of the properly performed maneuver is that pursuit policies and not chase all fleeing suspect, such as ramming the rear wheels of the target vehicle offenders, no wholesale fleeing or a Pursuit Immobilization lose traction, causing it to skid to a was likely to occur by those stop so that the pursuing officer or a back-up vehicle is able to then block signaled to stop by the police 4 Title 42 U.S.