To pursue or not to pursue? That is the question law enforcement officers around the country are asking as new legislation is drafted and re-drafted, case law is decided, policies change and best practices shift.
In response to the tragic outcomes of some police pursuits, the Washington state legislature banned vehicle pursuits entirely. The result was an increase in offenders seeking to evade law enforcement, knowing they would not be pursued. Criminals escaped arrest and law enforcement professionals were unable to do their jobs and protect their communities. Eventually, the state legislature included exceptions to the law that would allow law enforcement to engage in pursuit in specific circumstances.
“Should I engage in a vehicle pursuit?” The answer, in typical lawyer fashion: It depends.
Pursuits are unique – no two pursuits have the same surrounding circumstances. When faced with the question of whether to pursue, you must weigh the specific facts of the situation and make a decision in line with your policy and training.
In a recent Lexipol webinar, “To Pursue or Not? Strategies to Mitigate Risk,” Chief (Ret.) Mike Ranalli and Laura Scarry discuss why pursuits go wrong and how law enforcement professionals can make better decisions when it comes to engaging in, refraining from or terminating vehicle pursuits.
The law of law enforcement pursuits
When answering the question of whether cops should engage in vehicle pursuits, the first place to look is the law. While state laws differ across the country, federal case law provides an important backdrop for law enforcement pursuits:
- In County of Sacramento v. Lewis (523 U.S. 833 (1998)), the Supreme Court reviewed a case in which an officer accidentally ran over and killed the passenger of the pursued vehicle, and determined whether the officer was liable under the 14th\ Amendment “shocks the conscience” standard. The conclusion for law enforcement officers today, as summarized by Scarry: “If an officer had no improper or malicious motive during the police pursuit, no liability would result under the 14th.”
- Scott v. Harris (550 U.S. 372 (2007)) arose after a deputy executed a PIT maneuver that resulted in sustained injuries to the driver. Using the Fourth Amendment objective reasonableness standard, “The Supreme Court had to consider the risk of injury that the deputy’s actions posed to Mr. Harris in light of the threat to the public the deputy was trying to eliminate,” Scarry explains.
- In the case of Plumhoff v. Rickard (572 U.S. 765 (2014)), the Supreme Court ruled that the subject’s “outrageously reckless driving,” made the officers’ actions (shooting into the vehicle) objectively reasonable.
Remember: All these cases occurred at the federal level. But, as Scarry explains, “The majority of police pursuit cases, particularly those involving accidents where there was no intentional contact with the pursued vehicle or the vehicle’s occupants by police officers, are filed in state courts.”
This underscores the importance of knowing and understanding the legislation and case law that governs police pursuits in your own jurisdiction. But, as a general rule of thumb, “Liability will only be found where officers are deliberately or recklessly indifferent to the motorist being pursued, where officers fail to exercise due regard for the safety of citizens, or where the officers’ conduct was willful and wanton,” says Scarry.
So, federal law allows pursuits. But law enforcement professionals know the story doesn’t end there. The standard set by the law should not be the only bar for decision-making when it comes to pursuits.
Pursuing proper decision-making
So, why do pursuits occur? Law enforcement officers must uphold the tenuous balance between maintaining order by apprehending offenders and mitigating the risk of pursuits to community members, law enforcement personnel and the offender.
“There is no clear answer,” says Chief Ranalli. “We want to build an awareness of these issues…to demonstrate why [pursuits] should not be a programmed response. It should be something where you have to stop – for that fraction of a second – and you have to think.” It’s important to recognize there are times when the better decision is not to pursue.
Officers must be able to consider the circumstances of the situation and make an informed decision about whether to engage in a pursuit – and that requires more than policy.
As Chief Ranalli explains, “It’s a complex behavioral change that has to occur.”
Law enforcement agencies must create a top-down culture that encourages good decision-making – whether that be to engage in a pursuit, to not engage in a pursuit, or to terminate a pursuit – and mitigates risk.
“The reality is policy is just one of five pillars. Policy is essential, it’s the baseline for everything,” says Chief Ranalli. “But if you’re not training to the policy, if your supervisors aren’t reinforcing the policy, if you’re not properly affecting discipline – positive or negative – and if you’re not ensuring you have the right people,” you won’t solve the problem. Proper and effective reporting of all pursuits and non-pursuits is central to this culture. Report the facts and why the decision to pursue (or not) was made, and conduct reviews of all executed pursuits.
Law enforcement pursuits should not be undertaken lightly; pursuits come with inherent risks. But when officers do engage in pursuits, it should be with confidence that they are operating with legitimacy, under their agency’s policies and within their training.
Learn more and watch the on-demand webinar, “To Pursue or Not? Strategies to Mitigate Risk.”