Vol. 19 No. 3- Pursuit Legislation

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer

April 15, 2004

If proposed legislation S.B.1866 is passed, it will, virtually, prevent peace officers from pursing individuals who have committed crimes and are fleeing from police. Although it’s stated intent is to reduce potential harm to the public it will, in fact, cause great danger to members of the public by encouraging law violators to flee from the police.

It is well recognized by law enforcement officials that when individuals flee from police, at high rates of speed, those violators place all of us in great jeopardy. Unfortunately, the resulting harm caused by fleeing suspects is frequently referred to as harm caused by police pursuits. However, it is absolutely irrefutable that a peace officer never pursues anyone who does not, first, flee. As such, it appears logical that society must focus its attention on the cause of the harm and not on those members of society who serve as peace officers, in their efforts to apprehend lawbreakers.

Because the potential harm caused by these fleeing suspects is obvious to law enforcement, it endeavors to ensure that its peace officers engage in high speed pursuits in limited

circumstances, and in conformance to reasonable guidelines established by their agencies.

Currently, and for many years, California Vehicle Code sections 17004 and 17004.7 (enacted by the state legislature – not by a law enforcement agency) establish immunity from civil liability on behalf of the peace officer operating the emergency vehicle, as well as his or her agency, for harm caused to or by the fleeing suspect.

The United States Supreme Court stated in County of Sacramento v. Lewis, 523 U.S. 833 (1998), that the officer in that case “… was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause (the violator’s) high speed driving in the first place. Nothing to excuse his flouting of the commonly understood police authority to control traffic, and nothing…to encourage him to race through traffic at breakneck speed.” The Court went on to say that the officer’s “… instinct was to do his job, not to induce (the violator’s) lawlessness, or to terrorize, cause harm, or kill.”

As in all police pursuits, they are caused by a violator fleeing from a law enforcement officer. InCounty of Sacramento v. Lewis, the Supreme Court further stated that “a police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other hand, the high speed threat to everyone within stopping range, be they suspects, their passengers, other drivers, or bystanders.”

To assist a police officer in making that determination, to the best of my knowledge, every law enforcement agency in the State of California has adopted a high speed pursuit policy establishing guidelines for officers in making decisions on whether to initiate, and/or abort, a pursuit. C.V.C. section 17004.7 sets forth minimum criteria which shall be included in those policies in order for the immunity to apply. Additionally, the California Commission on Peace Officer Standards and Training (P.O.S.T.) developed additional guidelines to be included in those polices, as well.

Arguments have been set forth by legislators that the law does not require the “implementation,” through training, of those policies. Although the law itself does not set forth such a requirement, (nor does it in any legislation which thereafter evolves into a law enforcement policy), case law has consistently stated that if law enforcement agencies do not provide adequate training to ensure polices are being implemented, they suffer potential liability under the legal theory of “negligent training.”

Additionally, law enforcement agencies discipline peace officers who deliberately fail to comply with existing policies. To say, therefore, that law enforcement agencies in California have no obligation and, in fact, do not ensure that their officers are trained in pursuit policy guidelines, is just not accurate.

The proposed legislation, Senate Bill 1866, would amend the California Vehicle Code in an effort to establish a “cookie cutter” approach to such policies which would, thereafter, be applicable to all law enforcement agencies throughout the state. In fact, the legislation itself says that its purpose is to “strictly regulate the manner in which a peace officer motor vehicle pursuit is initiated, undertaken, and performed.”

The legislation would “prohibit” a pursuit which does not “qualify” under these provisions. For example, it only permits an officer to pursue a motor vehicle fleeing from an officer, if there is “reason to believe…imminent peril exists.” Imminent peril is defined as peril that is “certain, immediate and impending.” That determination would, unquestionably, be totally subjective, thereby leaving the officer constantly in a state of uncertainty as to whether or not someone else will determine that the peril perceived by the officer was not, in fact, “certain, immediate, and impending.”

For example, if a serious crime has already occurred, and the perpetrator is fleeing, is the peril still “immediate and impending,” or has it already passed? In such a case, would pursuing the violator be prohibited under this legislation?

S.B. 1866 also requires that several conditions must be applied in order to justify any pursuit. Conditions include, among others, officers coming “to a complete stop” at an intersection governed by signal lights or stop signs “until the officer is certain that all traffic has yielded the right of way.”(Emphasis added) Additionally, the legislation states that, “at no time shall the pursuit vehicle exceed the posted speed limit by greater than 15 miles per hour.” Such restrictions give fleeing suspects a “free pass” to freedom.

It is sad, but true, that harm comes to people because of misconduct on the part of members of our society. Individuals injured as a result of suspects fleeing from law enforcement are no less victims of crime than other individuals subjected to robberies, rapes, assaults or murder. To hold the law enforcement official responsible for the misconduct of criminals will undoubtedly lead to a chilling effect upon a peace officer’s ability to take action. It will not only endanger the officer, but it will endanger all of us if, as a result of the fear of liability, officers fail to take appropriate action in an effort to protect our families, children and friends.

This legislation not only removes immunity from the employing entity, but removes immunity from the peace officer, as well, if all of the elements are not complied with fully. From the perspective of those of us who represent and defend law enforcement entities, this is counterproductive to what we, unquestionably, understand is a good faith effort to try and reduce harm to members of the public by fleeing suspects. This proposal, however, is bad law and will not accomplish that goal.