igh-speed driving and pursuits are dangerous, risky parts of police work. Emergency vehicle operation creates potential risks for vehicle and property damage as well as personal injury or death of officers, suspects, and civilians. These risks, and the accompanying risk of litigation, have caused many agencies to reconsider the value of high -speed driving and police pursuits.

The key components of police pursuit lawsuits are as follows:

• How to address the legal theories of liability an agency will face in any particular jurisdiction


• How to address the challenges created by a jury's hindsight biases


• How to manage risk before and after a lawsuit is filed


• How to use the four -step process to increase trial success Preparing for the special challenges these lawsuits present can allow the department to avoid liability and protect individual officers.

Legal Theories
In all states, statutes control emergency vehicle driving. Most state statutes were adopted from the national Uniform Vehicle Code.¹ Such statutes typically describe the qualifications of an emergency vehicle, explain the rules of the road that may be violated, and end with the following typical statement regarding the emergency vehicle operator's responsibility:

The foregoing provisions shall not relieve the driver of a vehicle specified in paragraph (a) from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his or her reckless disregard for the safety of others. Florida Statutes Annotated, Sec. 316072(5)(c).

Similar statutes create a duty for an emergency driver to exercise "due regard for the safety of all persons" and does not protect him or her from the consequences of driving in a way that reveals "reckless disregard for the safety of others."

These two clauses are key to emergency vehicle operator liability. If and when a liability case is initiated, the questions of whether or not an officer exercised "due regard" and whether an officer's driving amounts to "reckless disregard" will inevitably be decided by a jury.²

Liability arising from pursuits exists in all states with only slight differences in the degree of fault applied to the pursuit, such as whether the officer showed deliberate indifference or reckless disregard. Some states limit liability to cases where the pursuing officer has been involved in a crash or directly caused a collision. However, some states permit a wide variety of lawsuits against the police when they are operating emergency vehicles that cause other drivers to crash, including lawsuits against the police for collisions caused by the fleeing criminal.

The latter category of lawsuit depends on the theory that a fleeing criminal's collision is a foreseeable risk of a pursuit. In other words, if the police action started the pursuit, then the police can and should be able to control the criminal's driving behavior. The logic supporting this theory is questionable at best, and the police attorney must make sure that a jury understands the difficulties an officer realistically faces during a pursuit-one of the most volatile, dangerous, and unpredictable tasks of police work.

The federal courts are the only jurisdictions that essentially bar pursuit lawsuits arising from a fleeing criminal's collision. In County of Sacramento v. Lewis,³ the U.S. Supreme Court held that the federal civil rights act theory does not apply to the usual pursuit lawsuit. The Supreme Court held that in order for an officer to deprive someone of his or her constitutional right of due process, an officer's conduct during the pursuit must have been so outrageous that it "shocks the conscience."

Hindsight Bias in Police Pursuit Lawsuits
In most police lawsuits, which range from excessive force to false arrest claims, the police have an enviable record in court. Juries tend to respect the job police perform, and realistic about the demands of street policing. These jurors' attitudes are reflected in the continuing success of police trials.

In contrast, the area of police pursuit liability has been more challenging largely due to the jury's hindsight bias, which is the phenomenon of looking at an event with full knowledge of the outcome. It profoundly affects police pursuit trial outcomes.

In the prototypical pursuit lawsuit, the police start chasing an offender for a traffic infraction or vehicle equipment violation. If the offender runs a red light and kills an innocent citizen, no one argues that it is worth killing a person to issue a traffic ticket. However, a jury's evaluation of the officer's decision to pursue, or the officer's pursuit tactics, can become tainted by the jury's knowledge of the outcome. In other words, a jury is likely to be more skeptical and less understanding of the officer's decisions when the jury knows that an innocent civilian was killed in the aftermath even if the decision to pursue and tactics employed during the pursuit were perfectly justified. Thus, an innocent civilian's death, although incredibly tragic, makes it easy for a jury to find an officer liable even when that death was not caused by the officer's actions such as in the case where the civilian is hit by the fleeing suspect's vehicle. This hindsight bias has proven very difficult to neutralize.

The Effect of Pursuit Policies on Liability
The effect of hindsight bias can be compounded depending upon the particular theory being pursued against the agency. There are three general theories of liability:

• The first accuses the department of negligently failing to adopt a restrictive pursuit policy.


• The second theory is that the pursuit was negligently initiated.


• The third theory is that the pursuit should have been terminated earlier, thus preventing a collision.

The theory invoked depends upon the particular pursuit policy employed by the department.

There are two widely adopted styles of pursuit policy.⁴ A restrictive policy limits the crimes for which a pursuit may be initiated. Common restrictive policies maylimit pursuits to those cases where there is a violent felony. In contrast, a discretionary policy gives the officer basic guidance about when to initiate, and discretion about how to conduct and terminate a pursuit.

Often the plaintiff and the plaintiff's paid experts will criticize the department for not enacting and enforcing a restrictive policy. This theory persuades juries, partly because a criticism of policy focuses attention on the faceless bureaucracy of the police department, and away from the individual police officer. A jury can more easily find fault with an agency than with an individual.

A lawsuit claiming the police agency should have adopted a restrictive pursuit policy gives the plaintiff an easier causation argument. In this situation, the plaintiff does not have to argue whether the officer's conduct, decisions, and tactics caused the officer's and suspect's conduct to the lack of policy as the cause, and the causation argument is simplified. After all, if the officer had been prohibited by policy from initiating a pursuit, it is much easier to prove that the felon would not have fled, and the collision would not have occurred.

In contrast, a lawsuit claiming the officer was negligent in deciding to initiate a pursuit, in the tactical choices, or in not terminating the pursuit, will be more difficult. One of the logic gaps in pursuit cases is the misguided claim that the police can control the suspect. When a pursuit the pursuing officer. However, what happens when the pursuit is terminated is much less clear.

What does a criminal do when the police terminate a pursuit? A National Institute of Justice researcher interviewed convicts and asked them to pretend the police terminated a pursuit, and then asked them to predict how much farther they would have run. According to this study, 70 percent of the 146 jailed suspects said that they would slow down "when I felt safe."⁵ No one has since replicated this type of study, and the authors feel there are good reasons to challenge the validity of the convict interviews. In reality, there is scant evidence showing that if the police shut down sirens and terminate pursuit, the fleeing felon will immediately drive the speed limit and eliminate further risk to the public. This is not most police officers' experience. Proving that the police can control the driving of the criminal during and after a pursuit is a significant challenge for the plaintiff in these pursuit liability lawsuits.

Risk Management before the Collision
Risk management has two steps: stopping lawsuits before they are filed, and winning the lawsuit after it is filed. Many agencies have struggled with the question of whether to ban pursuits, except for violent felonies. Proponents of restrictive policies often cite risk management as a reason for adopting such regulations.

Opponents of restrictive policies argue that pursuit bans and restrictions will encourage lawlessness. Field reports suggest that adopting restrictive pursuit policies lead to an increase in some crimes, especially auto theft.⁶

There are also unintended consequences. When one agency adopts a restrictive pursuit policy, local criminals may become aware of the restrictions and modify their behavior. A meth addict in a stolen car might surrender to the police if he knows that an immediate pursuit will occur and an additional felony eluding conviction is possible. That same criminal might choose to run if he thinks the police cannot chase him.

Astrong argument for a restrictive policy comes from analyzing the calculus of pursuit liability. In its simplest form, the pursuit liability calculus has only two factors: the initiating event and the type of injury suffered by the civilian. For example, if the initiating event is armed robbery and the civilian injury is a broken arm, the pursuit calculus favors the police. If the initiating event is a broken taillight and two people are killed, the calculus favors the plaintiff.

In this calculus, only one factor is subject to control by the police-the initiating event. Once the pursuit is underway, the police have little control over the type and severity of any injury. It is the existence of this pursuit calculus that makes adopting restrictive policies so attractive to many departments.

Agencies who want to reduce the risk of lawsuits will adopt restrictive pursuit policies. Such policies will eliminate civilian injury for a pursuit that was initiated for a broken taillight and limit litigation to cases where the civilian injury is a result of a more significant initiating event such as a violent felony. Most police lawyers believe that latter cases have a much better chance of success at trial.

Four Steps to Winning a Police Pursuit Lawsuit
If an agency is sued, an effective defense consists of four principles that, if followed, will increase the agency's chances of winning a positive verdict.

Fully Explain the Initiating Event
First, fully explain the initiating event. The roots of this principle are in the officer's experience and training and the ability to articulate observations that the untrained would miss. Due to training and experience, an officer can demonstrate the reasons why he suspected that what seemed to be the pursuit of a stolen car was actually more. Interrupting the observations of a stolen car at 2 a.m. in a high-crime area, occupied by four young men, is not a simple stolen car case. Depending upon the circumstances, the stolen car case might typically involve gang activities: drive-by shootings, robbery, drug manufacturing and sale, theft, and a constellation of suspected crimes. Adequately identifying this constellation as suspected by the officer based on training and experience enhances that factor in the pursuit calculus.

Use Statistics
Second, use statistics to convince the jury. The California Highway Patrol has twice analyzed pursuit statistics in that state. The second analysis, done in August 1995, has significant and persuasive evidentiary value.⁷ These statistics establish three critical points:

Point 1: The initiating crime and crime charged are not the same. Pursuit suspects are often charged with other significant felonies separate from the driving event.⁸ Most people would not lead officers on a high-speed chase for a defective equipment ticket or even a citation for expired license plates unless they had something to hide. The author's research has shown that people who run during traffic stops are involved in more serious criminal issues such as outstanding arrest warrants, drugs and illegal firearms in the vehicle.

Point 2: The risk of death or injury to a civilian is statistically low. As tragic as death may be, statistics shows that a civilian has a greater chance of being struck by lightning than being killed in a police pursuit.⁹

Point 3: The cost of abandoning pursuits is high. According to one study period by the California Highway Patrol, banning pursuits meant 66 murderers would go free, 190 robbers would be loose, and 4,000 felons would not be stopped.¹⁰

Locally developed statistics, or the introduction of these California Highway Patrol statistics, have had a powerful effect on juries.

Establish That Departmental Training and Controls Exist
Third, show that the agency has tried to act prudently. Juries expect accountability in professional police agencies. Evidence of the training and these controls help confirm these expectations.

Many agencies have extensive emergency vehicle operation training programs and driving courses. This can be several days of training, both high-and low-speed driving, and often at a designated facility with specific designed hazards. Periodical follow-on training is often required. Juries are typically impressed with the level and quality of training officers receive in emergency vehicle operations.

Most agencies also have significant procedural controls for a pursuit. These often start during the event with policies requiring a supervisor to monitor the pursuit.¹¹ Many agencies have a set of special pursuit reports that officers and supervisors have to prepare after an event, and these reports are reviewed up the chain of command. Most agencies have a policy that explicitly states an officer may never be disciplined for terminating a pursuit, but can be disciplined for pursuit policy violations where the pursuit is improper.

Use an Outside Pursuit Expert
Finally, use an outside expert witness. Police officers involved in a pursuit, when their training and experience are admitted, will often be deemed experts in most courts. The courts and juries acknowledge that officers have the background, training, and experience to offer opinions about pursuit driving and their conduct. The problem for these employee witnesses is that they are the subjects of the litigation. They are in the spotlight. When they are asked to defend their actions, they often appear defensive.

Backing up the employee witness with an outside forensic expert is critical. The ideal expert has been an Emergency Vehicle Operations Course instructor, who has helped develop pursuit policy, performed pursuits in the field, supervised pursuits as a line supervisor, and served in management evaluating trends and individualized cases. A successful record as a trial witness is also a favorable feature for the outside expert.

Winning the Cases
Police pursuit lawsuits pose special challenges, but they can be won. The first step in a successful defense is recognizing the impact of hindsight bias. To maximize the chance of a victory, the police agency must adequately explain the initiating event, focus on favorable statistics, detail the training and controls for a pursuit operation, and employ strategic outside expert witnesses. On the whole, juries do not want law violators running amuck in their community and will side with the police in pursuing and bringing the violators to justice. v

¹ National Committee on Uniform Traffic Laws and Ordinances, Uniform Vehicle Code. Chapter 11, Section 106 (Washington, DC: U.S. Department of Transportation, 2000).
² Young v. Woodall, 343 N.C 459, 462, 471 S.E.2d 357 (1996).
³ County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708 (1998).
⁴ International Association of Chiefs of Police. Vehicle Pursuit Policy. [CALEA 41.2.2.2, 61.3.4.] (Alexandria, VA: IACP, October 1996). (http://www.theiacp.org/documents/pdfs/Publications/Vehicular%20Pursuit%20Policy%2Epdf)
⁵ Geoffrey P. Alpert, Police Pursuit: Polices and Training (Washington, DC: U.S. National Institute of Justice, 1997), .
⁶ Clyde Eisenberg, Total Pursuit Management. (http://www.policedriving.com/pursuitmanagement.htm), September 22, 2003.
⁷ Department of California Highway Patrol Transportation and Housing Agency, The Evaluation of Risk Initial Causes v. Final Outcome in Policy Pursuits Business. 1995.
⁸ Id. at 9-13.
⁹ Id. at 43-44.
¹⁰ Id. at 48.
¹¹ International Association of Chiefs of Police. Vehicle Pursuit Policy. [CALEA 41.2.2.2, 61.3.4.] (Alexandria, VA: IACP, October 1996). (http://www.theiacp.org/documents/pdfs/Publications/Vehicular%20Pursuit%20Policy%2Epdf)
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