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Alpert (2008) - Police Pursuits

Alpert (2008) - Police Pursuits

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Ideas inAmericanPolicing
 Police Pursuits After Scott v Harris: Far from Ideal?
Number 10June 2008
Ideas in American Policing 
presents commentary and insight rom leading crimi-nologists on issues o interest to scholars, practitioners, and policy makers. Thepapers published in this series are rom the Police Foundation lecture series o thesame name. Points o view in this document are those o the author and do notnecessarily represent the ocial position o the Police Foundation. The ull seriesis available online at http://www.policeoundation.org/docs/library.html.
© 2008 Police Foundation. All rights reserved.
Geoffrey P. Alpert
is a proessor in the Department o Criminology and Criminal Justice at the University o South Carolina. He hasbeen conducting research on high-risk police activities or morethan twenty-ve years, and is a nationally recognized expert onpolice violence, pursuit driving, and training.
 William C. Smith
, an attorney, served as the legal advisor or theNHTSA task orce that produced the original Law EnorcementDriver Training Reerence Guide. He has written extensively onpolice pursuit liability and risk management issues
.
POLICE
FOUNDATION
 A 
t approximately 3 a.m.on February 10, 1941,Milton Elmore was working as he drove a horsedrawn, lighted milk wagonnorthwardly along Center Streetin Owensboro, Kentucky, andbegan to turn let in a westerly direction onto Fourth Street. A ew moments earlier, policeocers Robert Chambers andJack Long had observed aparked car occupied by WrenShearer, a person whose “badreputation had become known tothem.”
1
Shearer sped o to avoidinvestigation by the police, andbeore Mr. Elmore completedhis let turn, Shearer, who wasfeeing at approximately 75 milesper hour, crashed into the milk  wagon, seriously injuring Mr.Elmore. Both Mr. Elmore andthe Ideal Pure Milk Company sued Ocers Chambers andLong, and at the trial in October1949 the jury rendered a verdictor $588.83 in avor o the milk company or its property damageand a verdict or $10,588.85
 By Geoffrey P. Alpert and William C. Smith
1
 
Chambers v Ideal Pure Milk Co 
.,245 S.W.2d 589 (Ky. App. 1952) at 590.
 
——  ——
in avor o Mr. Elmore, ascompensation or his injuries.The verdict was challenged by the ocers, and on appeal to theKentucky Supreme Court the trialcourt’s decision was reversed. Thesupreme court noted: “Chargedas they were with the obligationto enorce the law, the traclaws included, they would havebeen derelict in their duty hadthey not pursued him. The police were perorming their duty whenShearer, in gross violation o hisduty to obey the speed laws,crashed into the milk wagon. Toargue that the ocers’ pursuitcaused Shearer to speed may beactually true but it does notollow that the ocers are liableat law or the results o Shearer’snegligent speed. Police cannotbe made insurers o the conducto the culprits they chase. It isour conclusion that the action o the police was not the legal orproximate cause o the accident,and that the jury should havebeen instructed to nd or theappellants.”
2
The
Chambers 
decision washanded down in 1952 and clearly indicated that while the actionso the ocers most likely causedthe oender to fee, they shouldnot be held legally responsibleor the actions o the feeingsuspect, even though he crashedinto and injured an innocentbystander. During ty-six yearssince the
Chambers 
decision,the laws relating to policeemergency and pursuit drivinghave changed dramatically, butthat transormation may have,in act, come ull circle with the2007 United States SupremeCourt decision in
Scott v Harris 
.
3
 
 At a minimum, a number o the judicial parameters thought by many observers to have beenreliably established have beencalled into question, and theoperational management o policepursuit operations has again beenthrust to the oreront as a mattero concern or law enorcementagencies (Lum and Fachner,orthcoming).
 Where Have We Been?
Since 1960, police departmentshave dramatically changed the ways in which they respond tofeeing suspects. During the1960s and 1970s, there was very little attention paid to the pursuitissue, other than with respectto ocer saety concerns. Inother words, police departmentstrained ocers how to drive andprovided them with deensive andemergency driving skills, the ocusbeing on technical prociency.Little attention was given tothe crashes, injuries, and deathsinvolving innocent bystanders whose sole transgression was,typically, being in the wrongplace at the wrong time. Duringthe late 1960s, however, a watchdog group called Physiciansor Automotive Saety, comprisedo emergency room physicians,released a report asserting that70 percent o all pursuits resultedin a crash, 50 percent o allpursuits ended in serious injuries,and 20 percent o pursuitsresulted in a death (Fennessy,Hamilton, Joscelyn, and Merritt1970). Unortunately, thereport relied more on anecdotalinormation than quantitativedata. Nonetheless, the reportcaptured more than the simplepassing interest o thosealready concerned with policeemergency vehicle operations. A second generation o researchon pursuits was initiated in the1980s and relied on quantitativedata rom police agencies. TheCaliornia Highway Patrol(CHP) led the eort, collectinga variety o inormation romlaw enorcement agencies inCaliornia, and reported that29 percent o pursuits resultedin a crash, 11 percent ended ininjury, and 1 percent resulted in adeath (Caliornia Highway Patrol1983). While the CHP study  was raught with methodologicalshortcomings, it has beenrecognized as the rst o a serieso studies that, ultimately, wouldlearn rom the shortcomings o the earlier studies and improveover time. Whereas Physiciansor Automotive Saety concludedthat pursuits were extremely dangerous and reorm wasnecessary to save lives, theCHP study concluded that“[a] very eective technique inapprehending pursued violatorsmay be simply to ollow the violator until he voluntarily stopsor crashes” (1983, 17).
2
Ibid. at 590–591.
3
127 S. Ct. 1769 (2007).
 
——  ——
In 1986, Alpert and Andersonpublished an article,
The Most Deadly Force: Police Pursuits 
, which sought to sharpen theocus o law enorcement andacademic observers on theinherent risks and potentialdangers o police pursuits. Duringthe same timerame, a series o studies was published, ollowingthe CHP research model butusing improved methodologand sampling techniques (Alpertand Fridell 1992; Alpert, Kenney,Dunham, and Smith 2000).The ndings rom these second-generation studies highlightedthe dangerous nature o pursuitsand the risks posed to bothpolice and citizens. The empiricalresearch debunked two commonmyths: most feeing suspects aredangerous violent elons; and i the police don’t chase suspects,all suspects will continue to fee,thereby greatly endangering publicsaety. What emerged rom theresearch ndings was the actthat most suspects who fee thepolice were young males who hadcommitted minor oenses and who had made very bad decisionsto fee. Additionally, the researchsupported the nding that i the police were to restrict theirpursuit policies and not chase alloenders, no wholesale feeing was likely to occur by thosesignaled to stop by the police(Alpert, Dunham, and Stroshine2006).By the late 1990s, thecollective awareness o society had been opened to thedangers o pursuit driving and,concomitantly, police departmentsbegan to modiy their policiesand to restructure their trainingto address the awareness.Lawsuits also played a majorpart in modiying police policiesand practices where vehicularpursuits were at issue. A majorlitigation trend evolved suchthat whenever a person, whethersuspect or innocent third party, was injured by actions arisingrom a police pursuit, suit wasalmost certain to ollow. And inmany instances the ling involvedsome allegation o violation o aederally secured right that theplainti sought to redress underSection 1983.
4
While countlesscivil rights suits were led, with varying degrees o plainti creativity, courts throughout thecountry responded to them inan overall inconsistent ashion,applying dierent standards,interpreting even agreed-upon standards dierently, andhanding down widely variedrulings on highly similar actualpatterns. By the early 2000s,the only reasonably sure bet incivil rights based pursuit actionsappeared to be that i a policeocer used a physical “meansintentionally applied”
5
to stop afeeing suspect, such as rammingor a Pursuit ImmobilizationTechnique (PIT) maneuver,
6
theederal courts would evaluatethe ocer’s action as involvinga “seizure” or purposes o a Fourth Amendment claim.The courts typically wordedtheir analyses in the context o 
Tennessee v Garner 
7
and
Graham v Connor 
.
8
With the advent o the 1990s, through its decisionsin
Brower v County of Inyo 
9
and
County of Sacramento 
 v 
Lewis,
10
 the U.S. Supreme Court provideda barely translucent analysis o the liability parameters o policepursuits under ederal civil rightslaw. The decisions in
Brower 
and
Lewis 
did little to provide any type o operational guidance,however, to law enorcementagencies legitimately seeking tobalance a need to apprehendagainst a requirement to protectpublic saety in pursuits. But they did spawn a cottage industry 
4
Title 42 U.S. Code Section 1983is requently reerred to as the FederalCivil Rights Act. Although Section 1983creates no rights in and o itsel, it doesprovide a remedy or violations securedby the U.S. Constitution or statutory provisions.
5
 
Brower v County of Inyo 
, 489 U.S.593, 597 (1989).
6
A Pursuit ImmobilizationTechnique (PIT) is a maneuver thatbegins when a pursuing vehicle pullsalongside a feeing vehicle so that eitherront quarter panel o the pursuing vehicle is aligned with the target vehicle’srear quarter panel. The pursuing oceris required to make momentary contact with the target vehicle’s rear quarterpanel, accelerating slightly and steeringinto it very briefy. The eect o theproperly perormed maneuver is thatthe rear wheels o the target vehiclelose traction, causing it to skid to astop so that the pursuing ocer or aback-up vehicle is able to then block the target’s escape and apprehend thesuspect. Unortunately, the process doesnot always work as planned. The PIT isdesigned to work saely at speeds slowerthan 40 MPH and in sae locations.
7
471 U.S. 1 (1985).
8
490 U.S. 386, 388 (1988).
9
489 U.S. 593 (1989).
10
523 U.S. 833 (1998).

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