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Unformatted text preview: Police Pursuits:
Part CRJU E491P, Police Liability
Spring 2011, Mr. Smith Going Forward from Brower
Going By the late 1990s, public awareness had been opened to the dangers of pursuit driving and a major litigation trend evolved such that whenever a person, whether suspect or innocent third party, was injured by actions arising from a police pursuit, suit against the police was virtually certain to follow. The only reasonably “sure” bet in civil rights based pursuit actions, however, appeared to be that if a police officer used a physical “means intentionally applied” to stop a fleeing suspect, the courts would evaluate the officer’s action as involving a “seizure” for purposes of a Fourth Amendment claim. Intentional Conduct in Pursuits
Intentional The claims before the Supreme Court in both Garner and Brower dealt with an officer’s conduct which was specifically focused on stopping the flight of a criminal suspect and which involved “an intentional acquisition of physical control.” In other words, in each of those cases, the injured person was intentionally “stopped by the instrumentality set in motion or put in place to stop him.”
What happens, though, if a person is injured in a police pursuit and there was no intention on the part of the police to stop that person? (i.e. there was no seizure) Fourteenth Amendment Claims
Fourteenth In Fourteenth Amendment cases, the injured party has not been subjected to police action willfully directed at him and, as such, the injury cannot be said to have occurred through any seizure by the police. In the majority of such cases, the injured party is typically either an innocent third party motorist or pedestrian.
Because such injured persons are not the target of a police seizure seeking to terminate their freedom of movement, there is no basis for a Fourth Amendment claim. County of Sacramento v. Lewis (1998)
County On May 22, 1990, James Smith, a Sacramento County sheriff's deputy, along with another officer, Murray Stapp, responded to a call to break up a fight. Upon returning to his patrol car, Stapp saw a motorcycle approaching at high speed. It was operated by 18year
old Brian Willard and carried Philip Lewis, a 16yearold passenger.
Stapp turned on his overhead lights, yelled to the boys to stop, and pulled his patrol car closer to Smith's, attempting to pen the motorcycle in. Instead of pulling over, Willard slowly maneuvered the motorcycle between the two police cars and sped off. Smith immediately switched on his own emergency lights and siren, made a quick turn, and began pursuit at high speed. For 75 seconds over a course of 1.3 miles in a residential neighborhood, the motorcycle wove in and out of oncoming traffic, forcing two cars and a bicycle to swerve off the road. The motorcycle and patrol car reached speeds up to 100 miles an hour, with Smith following at a distance as short as 100 feet; at that speed, his car would have required 650 feet to stop.
The chase ended after the motorcycle tipped over as Willard tried a sharp left turn. By the time Smith slammed on his brakes, Willard was out of the way, but Lewis was not. The patrol car skidded into him at 40 miles an hour, propelling him some 70 feet down the road and inflicting massive injuries. Lewis was pronounced dead at the scene. At the time the Lewis case reached the Supreme Court, there was widespread disagreement in the federal Circuit Courts of Appeal as to how egregious the conduct of a law enforcement officer must be in order for the conduct to rise to the level so it could be said to deny a citizen the right to life “through means other than a seizure.”
The importance of the question lay in the fact that the injury in a Fourteenth Amendment case comes about not through a seizure but, instead, through police conduct that, under the circumstances, can be considered to be abusive of the governmental power possessed by the police and which results in harm. In Lewis, the Supreme Court held that police officers engaged in a highspeed automobile pursuit are liable under the Fourteenth Amendment only if their actions were “conscience shocking” in the sense that they were intended to intentionally cause harm to a citizen for some illegitimate purpose. On the facts of the case, the Court had no difficulty ruling that the Deputy Smith was not liable. It noted that although he misjudged his ability to stop his vehicle before striking Lewis, he did not intentionally run him over and, as such, his actions were not conscience shocking in the constitutional sense. In effect, although Lewis did not involve a seizure with the requirement of intentional acquisition of physical control that results in harm, it seems to stand for the proposition that even though the officer did not intentionally acquire physical control of the party, the officer’s conduct that results in injury must, nonetheless, be intentionally directed at causing the injured party harm and not be supported by any legitimate purpose.
After the ruling in Lewis injured third parties are highly unlikely to find a federal, constitutional remedy for their pursuitrelated injuries. As a result, state law claims, such as negligence, have become increasingly important. Retreating from Garner:
Scott v. Harris (2007) After a police officer attempted to pull him over for speeding, Victor Harris fled in his vehicle, initiating a highspeed car chase. Attempting to end the chase, Deputy Timothy Scott rammed Harris’ vehicle with his police cruiser. Harris crashed and was rendered a quadriplegic. Harris sued Scott under section 1983 in federal District Court, alleging that Scott had violated his Fourth Amendment rights by using excessive force.
The Eleventh Circuit Court of Appeals ruled that Scott's actions constituted an unreasonable seizure in violation of the Fourth Amendment. Because there was no imminent threat Harris remained in control of his vehicle and the roads were relatively empty Scott's use of deadly force was held to be unconstitutional. The Issues Deputy Scott did not contest that his decision to terminate the car chase by ramming his bumper into Harris’ car constituted a “seizure.”
Both Scott and Harris conceded, also, that an excessive force claim arising from a seizure used to stop a fleeing suspect is properly analyzed under the “objective reasonableness” standard set out in Graham v. Connor. The only question before the Court was whether Deputy Scott’s actions, which resulted in Harris’ being rendered a quadriplegic, were objectively reasonable. Harris’ Arguments Harris asked the Court to analyze this case as it analyzed the use of force in Garner, to determine that Scott’s actions constituted “deadly force” and, to apply Garner’s “preconditions” before Scotts use of deadly force could be justified: (1) The suspect must have posed an immediate threat of serious physical harm to the officer or others; and
(2) deadly force must have been necessary to prevent escape. Harris argued that since the Garner preconditions for using deadly force were not met, Scott’s use of deadly force in ramming his vehicle was per se unreasonable. Scalia: Distinguishing Garner
Scalia: “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’”
“Whatever Garner said about the factors that might have justified shooting the suspect in that case, such ‘preconditions’ have scant applicability to this case, which has vastly different facts. Garner had nothing to do with one car striking another or even with car chases in general . . . . A police car’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun so as to hit a person.”
“Whether or not Scott’s actions constituted application of ‘deadly force,’ all that matters is whether Scott’s actions were reasonable.” Determining “Reasonableness”
Determining “In determining the reasonableness of the manner in which a seizure is effected, ‘[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’”
“Thus, in judging whether Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s actions posed to respondent in light of the threat to the public that Scott was trying to eliminate.” “So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person?” “We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.”
“It was respondent, after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high
speed flight that ultimately produced the choice between two evils that Scott confronted.”
“By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did.” “[W]e are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the doubleyellow line a few times, and runs a few red lights.” “The Constitution assuredly does not impose this invitation to impunityearnedby recklessness. Instead, we lay down a more sensible rule: A police officer’s attempt to terminate a dangerous highspeed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” And Forward from Scott
And The decision surprised many observers by its marginalization of the importance of the Garner decision.
Although the Supreme Court did not abandon the logic underlying Garner it did imply a flaw in the application of the Garner “two prong” test for reasonableness to pursuit cases involving questions of the dangerousness of the fleeing suspect.
The Court paid almost no attention to the fact that the suspect’s underlying offense was speeding, and instead voiced its view that the act of fleeing was a threat to everyone, and that those who flee recklessly from the police implicitly authorize officers to seize them with the force necessary. Notwithstanding the fact that both the District Court and the Court of Appeals had concluded that “[a]t the time of the ramming, apart from speeding and running two red lights, Harris was driving in a nonaggressive fashion (i.e., without trying to ram or run into the officers),” the Supreme Court posited that while Deputy Scott’s actions posed “a high likelihood of serious injury or death to Harris,” although they did not specifically declare Scott’s action to be an application of deadly force, his actions did not pose the “near certainty of death” posed by an officer shooting a fleeing felon in the back of the head. The Court balanced the risk of harm created by Deputy Scott’s action of ramming Harris’ vehicle with the threat created by Harris’ fleeing from Deputy Scott. Even though the Court admitted that there was no obvious way to quantify those risks, it observed that Harris “posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase.”
Under this analysis, the suspect, irrespective of the underlying offense, shoulders the total responsibility for the consequences of the actions of all involved parties, including the police, even though police action, such as ramming the vehicle, may have caused the suspect vehicle to crash into innocent third parties. ...
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- Spring '11