By Aurelio Rojas, The Sacramento Bee
Khuong Van Nguyen and his wife were collecting cans to sell in the parking lot of an Orange County high school when their lives were upended.
As classes were letting out, witnesses say, a stolen van traveling at 45 mph sped onto the campus of La Quinta High School in Westminster with police in pursuit and students scurrying out of the way. The van slammed into a large trash container, which careened into Nguyen, who suffered critical head injuries and spent three years in a hospital before he died in 1998.
More than 250 bystanders in California are injured each year -- on average, 16 are killed -- in accidents caused by suspects fleeing law enforcement agencies, according to state and federal statistics.
California law largely shields police departments from liability in these cases. But as pursuits have increased -- to 5,595 in 2001, according to the California Highway Patrol -- so has concern that a law intended to advance public safety may be imperiling it.
The statute, known formally as 17004.7 of the Motor Vehicle Code, provides immunity to agencies that adopt a pursuit policy that generally includes factors police must consider when deciding to begin, continue, control or end a chase. But the law does not require officers to follow the guidelines -- which would be mandated by a measure that is moving through the Legislature.
“The law in its current state simply grants a ‘get-out-of-liability-free card’ to public entities that go through the formality of adopting such a policy,” a state appeals court declared last year.
In dismissing a wrongful death suit filed against the city of Westminster by Nguyen’s family, the 4th District Court of Appeal urged the Legislature to “reconsider the balance between public entity immunity and public safety.”
Senate Bill 219 by Gloria Romero, D-Los Angeles, would require agencies to show a pursuit policy was followed. But law enforcement officials predict the proposed law would open the floodgates to costly lawsuits and discourage police from chasing criminals. “Some agencies ... are going to be told by their attorneys not to engage in certain pursuits,” said John Lovell, a lobbyist for the California Peace Officers Association and California Police Chiefs Association.
The measure -- approved by the Senate and awaiting action by the Assembly -- has received bipartisan backing. CHP Commissioner D.O. “Spike” Helmick said he is recommending that Gov. Gray Davis oppose the measure, but also said he is open to discussions with Romero on the language of the bill.
In voting for it, Republicans such as Sens. Jim Brulte, Ross Johnson of Irvine and Sam Aanestad of Grass Valley joined trial lawyers and the ACLU in supporting the measure.
“The bad news is that it probably will result in more lawsuits,” said Brulte of Rancho Cucamonga. “The good news, I think, is that fewer civilians will be killed by these pursuits, some of which are clearly not necessary given the level of offenses.”
Los Angeles Police Chief William Bratton recently acknowledged as much, overhauling his department’s policy to ban the use of minor infractions, such as a broken taillight, to justify a pursuit. Bratton said such minor offenses triggered at least 60 percent of the city’s pursuits. Law enforcement officials say Los Angeles -- where police pursuits have become popular television programming -- was one of the last agencies in the state to moderate its policy.
In Sacramento, after four bystanders were killed in one year in high-speed pursuits involving the Police Department, the City Council in 1998 approved a program to improve training after settling one lawsuit for $1.8 million.
Sgt. Jim Jarosik, a police spokesman, said collisions have decreased since then and there has been no officer-involved fatality. But a year ago, a suspect fleeing Sacramento County Sheriff’s Department deputies ran a red light and fatally injured a woman motorist at the intersection of Marconi Avenue and Bell Street.
The suspect was wanted on a parole violation and had been convicted of battery. Police officials say many fleeing suspects are violent and that discouraging officers from chasing them would decrease public safety.
Romero said her measure is intended to encourage law enforcement agencies to increase their pursuit training or “face the consequences.”
“Clearly, when you read the (appeals) court decision, it was a plea for the Legislature to do something,” Romero said.
She said her measure would not revoke the immunity police officers have from personal liability resulting from such chases.
But Martin Mayer, whose law firm represented the city of Westminster, said he believes the measure would subject officers to second-guessing.
“What the state is doing is imposing on an officer the burden of proving that everything he did was right -- even though it was the guy who fled who was wrong,” said Mayer, who also represents the associations of peace officers and police chiefs.
The law was a compromise that was reached in 1987 between trial lawyers and a coalition of government agencies, insurers and nonprofit groups designed to control insurance costs. Until then, victims or their families had the right to sue local governments in cases where police were negligent.
But Los Angeles attorney John Taylor, who represented the Nguyen family, said the legislation largely absolved agencies of responsibility.
“There has to be some sort of accountability, so that officers and departments are encouraged to follow policy,” said Taylor, whose appeal was dismissed by the California Supreme Court.
The state’s highest court previously upheld the statute, ruling in 1999 that an officer who gives chase without activating a siren or red light is still fully protected from liability.
The U.S. Supreme Court has also given departments wide immunity, ruling in a 1998 case that involved the Sacramento County Sheriff’s Department. The department was sued by the family of Philip Lewis, 16, who died eight years earlier in Orangevale while riding on the back of a speeding motorcycle driven by a friend. The motorcycle was accidentally struck by the pursuing patrol car. But justices ruled the deputy’s actions did not reach a level that would “shock the conscience,” and neither he nor the county could be held responsible.
In the Nguyen case, the state appeals courts found it “especially chilling” the accident occurred on a school campus where students were present. They also lamented his “family has no option for redress.”
Justice William Rylaarsdam agreed Westminster was entitled to immunity because it had adopted a pursuit policy.
“Unfortunately, adoption of a policy which may never be implemented is cold comfort to innocent bystanders who get in the way of a police pursuit,” Rylaarsdam wrote.