Unformatted text preview: Police Pursuits:
Part 1 CRJU E491P, Police Liability
Spring 2011, Mr. Smith Police Pursuit Claims
Police In cases involving police pursuits, there are two types of lawsuits that generally arise. The first type is a state law tort action for negligence. The second type of lawsuit is brought pursuant to 42 U.S.C. section 1983, and alleges a violation of an individual’s constitutional rights, typically under the Fourth Amendment or under the Fourteenth Amendment’s due process clause.
Fourth Amendment claims are brought by an injured criminal suspect, whereas Fourteenth Amendment claims are brought by an injured nonsuspect third party. Deadly Force Generally
Deadly A suspect driving in a motor vehicle at high speeds in a reckless manner jeopardizes public safety. Where the suspect refuses to stop driving that endangers the public, and other efforts to make the suspect stop are ineffective, courts have approved the use of deadly force directed toward the fleeing vehicle's driver. In Cole v. Bone (8th Circuit 1993), a tractortrailer driver went on a 50 mile rampage at speeds up to 90 mph. Over 100 cars were forced off the road in heavy holiday traffic before officers shot and killed the driver as the truck continued on. The Court of Appeals viewed the use of deadly force as reasonable and necessary. The threat to the public was immediate and substantial. Other ways to stop the truck roadblocks and shooting out the tires did not work. In Smith v. Freeland, (6th Circuit 1992), a speeding driver refused to stop, accelerated up to 90 mph, and finally stopped on a dead end street. Although blocked in by the officer, the driver rammed the officer's car twice and went around it. The officer fired one shot at the driver as the car went by him, killing the driver. The Court of Appeals concluded the officer acted reasonably in shooting since the driver already threatened many people and would have threatened more, including other officers, had he escaped. Roadblocks and ramming, like shooting, may be lawful, valid deadly force alternatives in limited and extreme circumstances. The burden of proof, however, is substantial: The threat to the public must be extremely high and alternatives to deadly force must have been unsuccessful or clearly impractical. Otherwise, the roadblock or intentional ramming may be considered an unreasonable seizure in violation of the Fourth Amendment. Section 1983 Pursuit Claims
Section Fourth Amendment pursuit claims are brought as “seizure” claims and find their origins, primarily, in Tennessee v. Garner. Accordingly, the claim will virtually always center around the use of “deadly force” as the majority of jurisdictions view the use of a police automobile to terminate a suspect’s flight as involving the use of a deadly weapon.
Fourteenth Amendment claims may, likewise, center around the use of deadly force but, because of the Supreme Court decision in Graham v. Connor, the injured third party can not state a Fourth Amendment claim and, instead, must focus on a deprivation of substantive due process under the Fourteenth Amendment’s due process clause. The Garner Connection
The After Tennessee v. Garner, law enforcement agencies have been required to operate under a "two prong" test, evaluating the following considerations before using deadly force against a fleeing suspect: 1) Does the fleeing suspect against whom deadly force usage is being considered pose a "significant threat" to members of the public if immediate apprehension is delayed; and, if so
2) Is there a lesser means of stopping the flight of the suspect, besides deadly force, which is reasonably available? The Garner “two prong” test has been a significant factor in police pursuit cases where a seizure by deadly force is alleged, although after Scott v. Harris (2007), its significance has been brought into doubt. “While it is not always clear just when minimal police interference becomes a seizure, there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.
… Deadly force may not be used to seize a suspect unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”
Garner v. Tennessee Brower v. County of Inyo (1989)
Brower The Supreme Court’s ruling in Brower relied heavily on the holding in Garner to point out that whether a suspect in a pursuit case could be seized by use of deadly force would depend upon the nature of the offense for which pursuit was initiated and the danger which the suspect posed to the public. The opinion is notable for its statement that that a Fourth Amendment seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” William Caldwell, the fleeing driver, was killed when the stolen car that he had been driving at high speeds for approximately 20 miles, in an attempt to elude pursuing police, crashed into a police roadblock.
The police had placed an 18wheel tractortrailer across both lanes of a twolane highway in the path of Brower's flight, concealing the roadblock by placing it behind a curve and leaving it unilluminated.
They also positioned a police car, with its headlights on, between Brower’s vehicle and the truck, so that Brower would be “blinded” on his approach. The roadblock used in Brower has been referred to as a “deadman’s” roadblock. The trial court granted a motion to dismiss Brower’s complaint for failure to state a claim on the ground that “establishing a roadblock [was] not unreasonable under the circumstances.” and that no “seizure” had occurred through the police use of the roadblock.
The Court of Appeals concluded that no “seizure” occurred when Brower collided with the police roadblock because “[p]rior to his failure to stop voluntarily, his freedom of movement was never arrested or restrained” and because “[h]e had a number of opportunities to stop his automobile prior to the impact.” The Supreme Court reasoned that Brower's decision to continue the chase did not eliminate police responsibility for the termination of his movement by use of a roadblock any more than Edward Garner's decision to flee eliminated the Memphis police officer's responsibility for the termination of his movement by shooting him.
The Supreme Court ruled that violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful. A seizure can not occur through the commission of an unknowing act.
The case was remanded for consideration of whether the seizure effected by the roadblock was “unreasonable.” Other Pursuit Seizure Scenarios
Other Both Garner and Brower are pertinent to any claim involving a seizure by deadly force effected through the instrumentality of a vehicle. Among the more common tactics seen as implicating seizure analysis are roadblocks (both rolling and stationary), ramming, and the socalled PIT (Pursuit Immobilization Technique) maneuver.
Since Brower, courts considering whether a police roadblock or ramming constitutes an unreasonable seizure, must evaluate two questions: (1) Did the roadblock or ramming constitute a seizure under the Fourth Amendment; and (2) If so, was the seizure unreasonable? Rolling Roadblocks
Rolling In Hawkins v. City of Farmington (8th Circuit 1999), a dispatcher informed a city police officer that the state highway patrol was in pursuit of a speeding motorcyclist and had requested assistance. The officer positioned his police car in the median of a highway and waited for the southbound motorcycle to appear. When the officer spotted a motorcycle coming around the bend at a high rate of speed, he activated his emergency lights and siren. The officer also decided to try to slow or stop the motorcyclist by pulling slowly into the passing lane of the southbound highway. The police car slowly moved out onto the highway at an idle. Believing the police car was going to turn left and travel southbound, the motorcyclist changed lanes to the right. However, the police car kept traveling across the highway and struck the motorcyclist who sustained severe injuries in the collision.
The Eighth Circuit Court of Appeals held that there was ample evidence for a jury to find that the rolling roadblock constituted a seizure and ample evidence for a jury to find that the officer’s conduct was unreasonable. Stationary Roadblocks In Seekamp v. Michaud (1st Circuit 1997), a speeding motorist ignored pursuing vehicles during a late night chase , drove through a toll plaza without stopping, and recklessly evaded a rolling roadblock. A state trooper was ordered to set up a roadblock north of a toll plaza at the end of a straightaway. The trooper commandeered a flatbed tractortrailer loaded with lumber and parked it across the three southbound lanes. The trooper parked his cruiser at the rear of the tractortrailer and shined its headlights in the direction the motorist would be approaching. Other tractortrailers were parked along the breakdown lane parallel to the blocked travel lanes. A fiftyfoot gap left between two of the tractortrailers allowed vehicular traffic to proceed around the roadblock. Street lights, lights from the cruiser, and lights from the tractortrailer lit the entire roadblock area.
In approaching the roadblock, the motorist seemed to brake several times but failed to come to a complete stop and collided with the tractortrailer parked across the southbound lanes, thereby suffering injuries. The First Circuit Court of Appeals concluded that the roadblock constituted a seizure but that no rational jury could have found it to be unreasonable under the circumstances:
“Unlike the ‘deadman’s roadblock’ in Brower,…[this] roadblock was brightly illuminated and located at the end of a long straightaway. The undisputed evidence established that it was visible from approximately 1500 feet to the north and the [motorist’s car] could have been brought to a complete stop without contacting the roadblock equipment but for its malfunctioning brakes. An adequate corridor for circumvention, though not readily apparent to vehicles approaching at excessive speed, had enabled many motorists to bypass the roadblock before [the Ramming
Ramming Like roadblocks, police ramming of a fleeing suspect’s car may be subject to unreasonable seizure claims.
Central to a determination of whether a police ramming is an unreasonable seizure is the intention of the officer accused of ramming. Merely colliding with a suspect’s vehicle during a pursuit does not necessarily amount to an unreasonable seizure in violation of the Fourth Amendment. However, intentional and successful use of force to stop a fleeing suspect’s vehicle would constitute a seizure under the Fourth Amendment. In considering a hypothetical scenario, the Brower court noted that that if a police cruiser were to pull alongside a fleeing car and sideswipes it, producing a crash, the termination of the suspect’s freedom of movement would involve a seizure. Even if an intentional ramming is deemed a seizure, the use of force may, nonetheless, be considered reasonable, depending upon the circumstances. Unintentional Ramming
Unintentional In Battle v. City of Florala (Middle District Alabama 1998), a female driver, while driving home from a local club, noticed an officer’s blue lights in her rear view mirror.
She believed the officer was chasing a group of young boys standing alongside the road and drove her car around an Sshaped curve in the road, where the officer rearended her car with his police car.
The Alabama district court determined that the collision was not a seizure under the Fourth Amendment, stating:
“Because [the driver] has neither pleaded nor offered any evidence to prove that [the officer’s] ramming was intentional, nor, according to [the driver], was the action taken in an attempt to apprehend her, the Court finds that the accident does not amount to a seizure and, thus, does not implicate the Fourth Amendment.” Intentional Ramming
Intentional In Weaver v. State of California (California Appeals 1998), a 14yearold boy, who agreed to wash a neighbor’s car, took the car joyriding with several friends.
The next day the boy replaced the car’s rear license plate with another plate and took a friend driving. When police tried to stop the car, the juvenile driver fled onto a freeway. The pursuit was then continued by the California Highway Patrol (CHP).
After the pursuit had lasted over an hour and had covered several freeways, the juvenile driver exited the freeway and circled streets in residential areas at speeds ranging from 15 mph to 70 mph. Several times during the pursuit through the residential areas, the CHP supervisor directed the pursuing officer to use a pursuit immobilization technique (PIT) maneuver, but the officer declined because he believed the conditions were not safe. According to the CHP manual, the PIT maneuver is a form of ramming that should not be used at speeds in excess of 35 mph.
When the fleeing car was traveling on a frontage road near the freeway where there were no pedestrians and no traffic, the CHP officer rammed the rear of the fleeing car, causing it to spin out and hit an abutment wall. There was a factual dispute as to how fast the cars were traveling at the time of the ramming. The passenger inthe fleeing car was seriously injured and brought suit under section 1983 claiming that the officer’s ramming of the fleeing car constituted to an unreasonable seizure in violation of the Fourth Amendment.
In commenting on the claim and the activities of the CHP as a seizure, the Court of Appeals noted: “In this case, we conclude that the evidence is undisputed that Weaver was subject to a seizure within the meaning of the Fourth Amendment. It was without dispute that Johnson and Flores knew that there were two individuals in the Altima and intended that Flores employ the PIT maneuver, which Flores defined in his deposition as an ‘immobilization’ technique. Thus, the officers admittedly intended to “It was also undisputed that the CHP manual defined ramming, which encompassed the PIT maneuver, as ‘the deliberate act of impacting a violator's vehicle with another vehicle to functionally damage or otherwise force the violator's vehicle to stop.’ Accordingly, by definition, the PIT maneuver is a seizure within the meaning of the Fourth Amendment.”
"We conclude as a matter of law no rational jury could find the instant seizure unreasonable under the circumstances here. A 14 year old driver who has led police on a two hour pursuit over several freeways and through residential neighborhoods at unsafe speeds and in disregard of the traffic laws clearly lacks the skills and judgment of a mature driver.” “According to the officers, so many bystanders had come out of their homes while (the driver) was circling through the residential streets that the area resembled a 'parade route.’ With so many vulnerable bystanders in the area, and an unpredictable, youthful driver who had clearly expressed a willingness to engage in violent conduct to continue his flight, the officers acted reasonably in employing deadly force to stop (the driver).” Public Safety Considerations
Public A great deal of judicial analysis regarding the reasonableness of police pursuit activities has centered on a balancing of the police “need to apprehend” versus the “need to protect public safety.”
In state negligence cases, this analysis is particularly true, although the Supreme Court has also employed the analysis in its decisions when evaluating whether a police seizure by deadly force is warranted. Brown v. City of Pinellas Park
(Florida Supreme Court 1992) After running a red light in Pasadena, Florida, John Deady attempted to elude a sheriff's deputy in a high
speed chase. As the chase continued, the sheriff's deputy was joined by at least fourteen, and as many as twenty, separate police or sheriff's vehicles, each s pursuing at speeds that varied between eighty and 120 mph.
At some point, the Pinellas County Sheriff's Department ordered its officers to discontinue the chase. For unknown or unstated reasons, this order was not obeyed. By the time the caravan reached the intersection of U.S. 19 and State Road, Sheriff's Corporal Daniel Rusher was waiting in the turn lane, ready to join the pursuing caravan. In the lane immediately next to Rusher was a vehicle occupied by two sisters, Susan and Judith Brown, who were waiting to enter the intersection. Rusher made no attempt to block the intersection or to prevent the Browns from proceeding into the intersection.
When the light turned green, Rusher moved his vehicle onto U.S. 19 so he could join the chase. At the same time, the Brown sisters moved forward into the intersection, at the same time as Deady’s vehicle did so. Deady's vehicle struck the Browns' vehicle at 90 mph. Deady and Susan Brown died instantly, and Judith Brown died three days later. “Here, the complaint alleges an enormous overreaction by sheriff's and police officersone reminiscent of the most violent, daredevil films that Hollywood stunt men have produced. Solely because a man ran a red light, suddenly the innocent citizens of Pinellas County were subjected to a threatening stream of publiclyowned vehicles hurtling pellmell, at breakneck speed, down a busy roadway in one of Florida's most densely populated urban areas.” “This caravan stormed through red lights for some twentyfive miles, gathering more and more police vehicles as it sped along. By the time the tragic chase ended, between fourteen and twenty police vehicles were included, only magnifying the risk to Pinellas County's innocent and unsuspecting residents. The reasons for these actions can only be dubious. Were there no more reasonable means of vindicating Florida's law against running a red light than this?” “Surely there is only one answer to this question. The police simply could have taken the violator's license
plate number together with a description of the car and driver, and then stopped the pursuit. Later, the violator could be located in some less dangerous setting, arrested, and brought to justice. And even if he continued to elude police, surely everyone must agree that this result is far better than the deaths of innocent persons.” ...
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- Spring '11
- Seizure, deadly force