The general idea is that policies are written with so many caveats that an officer could not engage in a pursuit without being found to have violated some sort of policy…
A recent video of a pickup truck going airborne at the end of a police pursuit has drawn a lot of media attention recently. This video, with the theme song from the eighties television show The Dukes of Hazard added to it, is only one illustration of the danger and excitement involved in a police pursuit.
Whether you are a police officer, or someone who once dreamed of being “on the job,” or you have just watched “Cops” on TV and found it entertaining, some moments in law enforcement stand out in terms of excitement.
“Be advised, radio, they are not stopping!”
What now? You need to make a split-second decision. Do you let the perpetrator go? What did you become a cop for if not to catch criminals and put them in jail? Do you chase him? Pursuing a vehicle is probably the most high-risk task you will ever take as a police officer. It causes exhilaration for officers that are actively engaging in the pursuit, and stress headaches for administrators anxiously monitoring the radio.
The US Supreme Court sided with law enforcement officers when it comes to high speed pursuits in Scott v. Harris. The late Justice Antonin Scalia indicated in his delivery of the Court’s opinion that the person who flees from police and essentially necessitates a pursuit should be a factor in deciding qualified immunity for the officer. Agency policies have yet to catch up. In no uncertain terms, policy matters when it comes to whether the officers in your jurisdiction can and should pursue or not. Deterrence can depend, at least in part, on the policies and training of those that serve your community.
Pursuit policies are a constant balance of risk. Be assured that while the suspect is on foot, there is rarely any concern devoted towards how hard the police officers pursue him. As soon as they get behind the wheel of a vehicle, however, the results can quickly become deadly. A sensible pursuit policy is needed to protect the officers in your community from discipline and liability.
One Police Chief that I worked for throughout the nineties was fond of saying, “We’ll chase them until their wheels fall off!” His written policies could be boiled down to, “You run, we chase!” He did not shy away from it either. On one occasion, when a street supervisor tried to terminate a pursuit, the Chief quickly grabbed the radio and told the officer he was authorized to continue it. A few years (and to be fair, over a hundred pursuits that did not end badly) after that incident, a different pursuit ended in a traffic crash that killed an innocent man. A significant amount of money changed hands, and the pursuit policy was soon altered. While my admiration for his approach cannot be denied, I do not dispute that some of the pursuits that happened under that administration were extremely risky to the officers and the surrounding public.
In a USA Today article from June of 2016, a shift in an Illinois pursuit policy is reported. The new policy states, “Pursuit is authorized only if the officer has a reasonable belief that the suspect, if allowed to flee, would present a danger to human life or cause serious injury” (emphasis added). Since no officer has a crystal ball, a statement such as this in a policy essentially lends administrators, and potentially a judge or jury, the ability to disagree whether that officer’s belief was “reasonable” or not.
In an article published on March 3, 2017 on USA Today’s affiliate organization, “Democrat and Chronicle,” the Rochester Police Department announced that they had seen a reduction in police pursuit fatalities after a policy shift as well. Their new policy is 16 pages long. Policies such as this, colloquially known as CYA policies, will inevitably shift the burden of liability from the agencies to the individual officers on the streets.
CYA Policies and Qualified Immunity
The importance of qualified immunity on an officer’s ability to do his job cannot be undervalued. Qualified immunity grants the officer protection from being sued provided he is following the laws of his jurisdiction and the policies of his department. In the event of an innocent person getting injured or killed in a police pursuit, they have limited options for recompense. They can sue the suspect that was fleeing, but that person is likely to be injured as well or facing significant incarceration and therefore will probably be unable to pay. Most will turn toward the “deep pockets” and sue the department in hopes of a settlement or sympathetic jury.
Some departments have begun to write policies that shift that liability away. Despite the Supreme Court ruling that liability should fall upon the suspect that fails to stop lawfully, most of the liability in these departments is being shifted to the individual officers. Since qualified immunity only applies if the officer was following agency policy, it is becoming a reduced protection as many of the policies being written are impossible to follow. The specifics of the policies may not be entirely consistent, but the general idea is that the policies are written with so many caveats and specific procedures, that an officer could not engage in a pursuit without being found to have violated some sort of policy. A good rule of thumb to identify these types of policies is if you see a pursuit policy that is more than five pages long.
Five pages is plenty of space to outline scenarios of when an officer should and should not pursue, as well as outline acceptable conduct during the pursuit. More than that, and the policy is written for officers to fail. When the officer fails to follow, agencies can then point the blame at the officer for failing to follow the policy, and immediately the liability shifts to a “rogue” officer rather than to the agency. Disciplinary action starts getting handed out like candy.
The result is that officers lose faith in the ability of their administration and policies to back them, and proactive law enforcement comes to a halt. Eventually, criminals catch on and start to target those areas more aggressively. Crime rates go up, and property values go down.
I am not proposing that all regulations on police pursuits be removed. I simply want pursuit policies to be sensible. Admittedly, police pursuits are a risk to the public, and no person who just lost an innocent relative is going to be comforted by the words, “Well, we caught him.” There needs to be balance, however. Suspects convicted of leading police in a high-speed chase should receive severe punishments. Liability should be focused on the suspect that chose to run, rather than the officer whose duty it is to catch them.
David Thornton is an OpsLens Contributor and retired law enforcement officer.
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