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dailyjournal

Not So Black and White

Perspectives: Law Enforcement

Underneath that rigid view of right and wrong is an implicit balancing test diminishing the value of the persons drawing the negative lottery ticket. That human roadblock [innocent bystander] is an abstract entity until the number is drawn. Thereafter, it is Kristie Priano.

by Robert Bastian Jr.

California has one specific area of law which is shamefully unique among the fifty states. California Vehicle Code Section 17004.7 provides near absolute immunity to law enforcement for injury to innocent bystanders caused by poorly executed police vehicle chases. All other states provide for at least some form of liability. Only California makes redress in court effectively impossible.

By poorly executed police pursuits, I refer to instances where no reasonably trained and thinking officer, following his or her training and departmental policy, would start or continue the pursuit. Not all police pursuits should be discouraged, nor are they in other states. The public interest, for example, in apprehending a known, immediate threat to the public, such as a suspected kidnapper or dangerous perpetrator of other violent crime, is unquestioned. But not all black and white pursuits are so black and white.

The paradigmatic example of a pursuit that should not have occurred is the needless death of Kristie Priano. Kristie, a high school honors student, was sitting in the back seat of her parent's van on the way to her basketball game in Chico.

A mother called police, complaining that her own teenage daughter was joyriding in the family car without consent.
Even though the responding officer knew where the rebellious teenager lived and where she would return, rather than wait for the situation to resolve, he engaged her in a high-speed pursuit through a residential neighborhood, ending when the teenager's car T-boned Kristie's vehicle. Kristie was the barrier that stopped the pursuit.

Every other state provides at least some legal redress to deter such misjudgment and provide an element of justice for the injured. In California, however, all a law enforcement agency must do to obtain immunity is enact a policy that comports with basic statutory requirements.

Amazingly, the agency does not even have to follow the policy. A department could draft the final version of the policy in lipstick on the back of a napkin and, so long as it is promulgated and meets the minimum statutory requirements, no one need have read, much less follow it, to claim immunity.


This is poor public policy. An appellate court in Nguyen v. City of Westminster, acknowledged as much when it reluctantly upheld dismissal of an action brought by the survivors of an innocent man, killed at the end of police vehicular pursuit across a schoolyard. The court, dismayed by the "get out of liability free card," urged the California Legislature to take action. Some representatives have tried, but have been unable to overcome law enforcement resistance.

One might wonder why law enforcement has so much leverage on this particular issue. An officer cannot, for instance, indiscriminately shoot a firearm across a shopping mall to apprehend a fleeing shoplifter. Why would the law permit her to indiscriminately pursue the same suspect in a vehicle across the same space?

The reason no effort is made to immunize misuse of a firearm is that, even after state immunity is granted, the officer would still be bound by the Fourth Amendment to use only reasonable force to seize a suspect. In effect, federal law provides a backstop.

Vehicular pursuit, though, receives softer treatment in federal courts. Reasoning that a police chase is not a "seizure," the U.S. Supreme Court, in County of Sacramento v. Lewis, applied a Fourteenth Amendment due process clause gloss which is much more forgiving to officers accused of using poor judgment. Rather than evaluate whether a pursuit was merely unreasonable, the pursuit must, rather, "shock the conscience." Increasingly police-leaning courts, though, are rarely shocked. Effectively, there is no federal law backstop regarding police pursuits. State immunity is, thus, blanket immunity.

Some visceral law enforcement opposition to state liability could, in a rational world, be overcome by a simple compromise. Officers often instinctually resent any second-guessing of what, for them, are split-second judgments in the field by lawyers, judges and juries, all Monday-morning quarterbacks with 20/20 hindsight.

But if liability restrictions were relaxed only against the department, rather than the individual officer, there is still meaningful redress for those injured by misconceived police pursuits. Moreover, a deterrent mechanism is established against departments which otherwise might fall short in promulgating effective policy or implementing the necessary training, supervision and discipline to ensure the policy's effectiveness.

Many officers oppose even this compromise on grounds their supervisors, fearing liability, will make disciplinary decisions that adversely effect their subordinates' careers. But this is a strange argument for those insisting that police, blanketed with immunity, can police themselves. It is an assumption that supervisors otherwise assumed to make correct supervisory decisions suddenly develop, when faced with balancing and taking some responsibility for innocents' injuries, poor judgment.

There is a deeper layer of law enforcement bias underlying this conversation. The attitude is, "Don't blame us, blame the lawbreaker. If only the lawbreaker had not run," the conversation typically begins. This sentiment is founded, though, upon a simplistic view of causation, morality and public policy.

No one questions that a person lawfully detained or arrested should not flee from the police. But that fails to justify a disproportionate response which threatens the safety of the public, in whose name and on whose dime pursuit is initiated.

Obviously - at least to the trained legal mind - an unreasonable police response can "substantially cause" an otherwise avoidable injury to innocents. Officers, who are trained to analyze and investigate crime scenes, understand these principles of concurrent causation.

In terms of morality, the argument is that by placing any blame on law enforcement for bad pursuit outcomes, righteous opprobrium against the lawbreaker is diminished. It is a hard, disassociated attitude that works better in the abstract, but not when it is your child that draws the negative lottery ticket that makes him or her the roving barrier. Underneath that rigid view of right and wrong is an implicit balancing test diminishing the value of the persons drawing the negative lottery ticket. That human roadblock is an abstract entity until the number is drawn. Thereafter, it is Kristie Priano.

The Legislature, regrettably, has reflexively responded in black and white - that further scorn and punishment should be heaped on the fleeing suspect. Indeed, the Legislature has already increased the criminal penalties for fleeing, albeit, without making any effort to determine whether it has had an appreciable deterrent effect on violations. It hasn't.

On Jan. 1, 2006, a new law took effect in California increasing the criminal penalty for fleeing which causes serious bodily injury or death. In the preceding year, the number of occupants of vehicles not involved in the chase or bystanders killed in California was reported to be 7. In 2006, after penalties increased, the number rose to 19.

Regrettably, pursuit deaths are under-reported because reporting is insufficiently mandated. But, if there is a generalization to be made regarding the relationship of blanket immunity to pursuit deaths, it's this: California leads the nation in such tragedies. Even controlling for its size, California's dubious lead in this category appears out of proportion. In 2006, for example, California accounted for 50 of the 410 persons reported perished in police pursuits; and 19 of 125 deaths of occupants of vehicles not being pursued or bystanders.

Compare Nebraska, which requires the responsible police agency to compensate innocent victims of those injured by police pursuits. In 2006, there were no reported fatalities in that state.

Increased criminal penalties fail because, typically, the person fleeing is acting irrationally. It's typically drugs or alcohol, immaturity and sometimes, criminality. Other times, that person's last freedom is, in the words of Bobby McGee's companion, "nothin' left to lose."

In a study prepared for the Dept. of Justice, Dr. Geoffrey Alpert, found that, among persons interviewed who ran from the police, 46 percent were impaired by drugs or alcohol, 32 percent were driving stolen vehicles, 20 percent were afraid they would be beaten, 17 percent had drugs in their possession and 16 percent were involved in serious criminal activity. (The percentages do not total 100 percent because the categories overlap.)

Leveraging such despair, impairment or immaturity into a speed contest is rarely the best or, even, an appropriate option. But only California denies innocent victims of such misjudgment legal recourse. Dull surprise, then, the state with the most fatalistic policy suffers the most fatalities.

Robert L. Bastian Jr., partner of the Law Offices of Bastian & Dini, Beverly Hills, is a board member with PursuitSAFETY. For more on this subject, please visit: pursuitsafety.org.

Published: September 30, 2009

 


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