Liability Exposure To Elected Officials From Police Vehicle Pursuits Scott D' MacLatchie Womble Carl

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Liability Exposure To Elected Officials From
Police Vehicle PursuitsScott D.
MacLatchieWomble Carlyle Sandridge Rice,
PLLCCharlotte, North Carolina

• NORTH CAROLINA LEAGUE OF MUNICIPALITIES
  CENTENNIAL CONFERENCE
• October 12-14, 2008Charlotte, North Carolina

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Villepigue v. City of Danville, Va.(N.C. Court
of Appeals 5/6/08)

• Holding Gross negligence remains the standard
  for liability arising out of death or injury from
  a police vehicle pursuit. Gross negligence
  occurs only when an officer consciously or
  recklessly disregards an unreasonably high
  probability of injury to the public despite the
  absence of significant countervailing law
  enforcement benefits.
• Facts Danville P.D. Officer Travis Giles went
  in pursuit of a pickup truck driven by Doyle
  Terry after observing Terry run a stop sign and
  then accelerate so hard his tires spun. As Terry
  fled, he drove so erratically and recklessly
  that Giles felt he was a DUI. Terry crossed the
  center line and sideswiped another car just short
  of the North Carolina state line. Believing Terry
  posed an imminent threat to public safety,
  Giles obtained radio approval to continue the
  pursuit into North Carolina. The pursuit
  continued southbound on S.R. 86 at high speeds,
  including speeds at times in excess of 100 mph,
  until Terry rear ended another car and then
  veered into a northbound Four-Runner driven by
  James Villepigue. The impact caused the
  Four-Runner to spin into the path of Giles
  patrol car. The Four-Runner was T-boned, and
  Villepigue died at the scene. The data recorded
  in Giles patrol car shows his speed was 106 mph
  four seconds before the collision and 68 mph one
  second before the collision.
• Villepigues family sued Officer Giles and the
  City of Danville for wrongful death. Giles and
  the City moved for summary judgment, which was
  granted by a Caswell County Superior Court judge.
  The family appealed to the Court of Appeals,
  which affirmed the judgment in favor of Giles and
  the City.
• Rationale The facts of Giles drove at a high
  rate of speed and passed multiple cars while
  using his blue lights and siren on a narrow
  two-lane road did not meet the gross negligence
  standard. As the Court noted The weather was
  clear the road relatively straight, with only a
  slight bend and grade and it was approximately
  230-300 p.m. on a Sunday afternoon. Defendant
  was unaware of the upcoming intersections
  activity, the victims car, or the stopped line
  of traffic directly in front of his vehicle.
  This certainly does not constitute gross
  negligence under the standard required by the
  North Carolina police pursuit cases previously
  decided by the Supreme Court and Court of
  Appeals. Plaintiffs arguments to the contrary
  are rejected.

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Scott v. Harris(U.S. Supreme Court 4/30/07)

• Holding A police officers attempt to
  terminate a dangerous high-speed car chase that
  threatens the lives of innocent bystanders does
  not violate the Fourth Amendment, even when it
  places the fleeing motorist at risk of serious
  injury or death.
• Facts A Georgia deputy sheriff clocked a
  vehicle being driven by Victor Harris at 73 miles
  per hour on a road with a 55 mile-per-hour speed
  limit. Harris ignored the deputys blue lights
  and sped away, initiating a chase down what is in
  most portions a two-lane road, at speeds
  exceeding 85 miles per hour. The deputy radioed
  his dispatch to report that he was pursuing a
  fleeing vehicle, and broadcast its license plate
  number. Deputy Timothy Scott heard the radio
  communication and joined the pursuit along with
  other units. In the midst of the pursuit, Harris
  pulled into the parking lot of a shopping center
  and was nearly boxed in by the various police
  vehicles. Harris reacted by making a sharp turn,
  colliding with Scotts patrol car, exiting the
  parking lot, and speeding off once again down a
  two-lane highway. Scott then took over the
  pursuit as the primary unit. Six minutes and
  nearly 10 miles after the pursuit had begun,
  Scott decided to attempt to terminate the episode
  by employing a PIT maneuver for which he sought
  and received supervisory approval. But instead
  of employing the textbook PIT maneuver, Scott
  applied his push bumper to the rear of Harriss
  vehicle, causing him to lose control, run down an
  embankment and overturn. Harris was badly
  injured and was rendered a quadriplegic.
• Rationale The Supreme Court was heavily
  influenced by the suspects reckless driving
  which was caught on videotape. Significantly, it
  flatly rejected the notion that a suspect should
  be allowed to force the police to discontinue a
  pursuit simply by driving recklessly. We are
  loath to lay down a rule requiring the police to
  allow fleeing suspects to get away whenever they
  drive so recklessly that they put other peoples
  lives in danger. It is obvious that perverse
  incentives such a rule would create Every
  fleeing motorist would know that escape is within
  his grasp, if only he accelerates to 90 miles per
  hour, crosses the double-yellow line a few times,
  and runs a few red lights. The Constitution
  assuredly does not impose this invitation to
  impunity-earned-by-recklessness.

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Limited Potential For Elected Official Liability

• A public official, including an elected official,
  cannot be held vicariously liable for any
  conduct of his subordinates. Strickler v.
  Waters, 989 F.2d 1375, 1387 (4th Cir. 1993).
• A public official is usually exposed to liability
  for the conduct of a municipal employee only
  where he or she is in a supervisory position over
  the employee, and knows or should know of the
  employees unfitness, and fails to take
  corrective steps or remove the employee.
  (usually called negligent retention or
  negligent supervision)
• The inquiry into an elected officials liability
  will usually look at whether the official holds
  the status of final policymaker over the
  particular municipal function at issue. The
  answer to the question always depends on state
  and local law. If state law is silent, how are
  the officials duties defined by the city
  charter, for example? Does the city charter
  contemplate that final policymaking authority
  resides in the city council as a body rather than
  in individual members? To what extent are police
  operations dictated by the mayor or city council?
  To what extent does the mayor or city council
  establish police policies and procedures?

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Limited Potential For Elected Official Liability

• We are satisfied that defendant Preiser, the
  former Commissioner of Corrections, was not
  sufficiently involved in the alleged denial of
  due process to subject him to personal liability.
  There was no evidence that he participated
  directly in the Adjustment Committee hearings,
  that he had knowledge of what went on at the
  hearings, that he had reason to suspect that
  there had been any wrongdoing, or that he had
  direct responsibility for or control over the
  Adjustment Committee. The fact that he was in a
  high position of authority is an insufficient
  basis for the imposition of personal liability.
  McKinnon v. Patterson, 568 F.2d 930, 934 (2nd
  Cir. 1977)
• The Mayor has no power to change policy
  affecting police matters directly. His power to
  effect changes is limited to his power to appoint
  people who will effect the changes he desires.
  The Mayor argues that the power to appoint people
  who can change undesirable practices is not equal
  to the power to change those practices directly,
  and that only people who have the direct power to
  change those policies can be held liable. The
  Mayor further argues that there is no clear law
  that would establish any such indirect liability.
  The court agrees on both counts. Accordingly,
  the motion of the Mayor for qualified immunity is
  GRANTED. Cunningham v. Gates, 989 F.Supp. 1262,
  1275 (C.D. Cal. 1977).

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New Definition What is Pursuit?

• A multistage process by which an officer attempts
  to initiate a traffic stop and the driver resists
  the directive to stop and increases speed or
  takes evasive action and refuses to stop the
  vehicle

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Officers must reasonably believe . . .

• That the suspect
• Refuses to stop
• Is willfully fleeing
• Attempting to avoid capture
• By
• High speed driving
• Evasive maneuvers
• Driving off roadway
• Making sudden/unexpected movements
• Driving on the wrong side of the street/roadway
• Running red lights/stop signs

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THE DECISION to pursue or not to pursue
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Sample Excerpt From Recently Revised Policy

• In making the decision to begin or continue to
  pursue, the deputy and patrol supervisor should
  also consider, based upon the totality of the
  circumstances, the likely harm from not
  apprehending the suspect as soon as possible.
  The need to arrest the fleeing suspect
  immediately includes the following factors
• a. danger to the public from suspects driving
  A suspect operating a motor vehicle at a speed or
  in such a manner as to put the public in a
  substantial and immediate risk of serious
  physical injury, in a highly reckless manner, or
  in a manner suggesting DWI or a willingness to
  inflict serious harm and injury upon other
  motorists, creates a substantial need to arrest
  immediately.
• b. seriousness of crime If the crime the
  suspect is believed to have committed is a
  violent felony, or violent misdemeanor, or
  involves conduct that threatens injury or
  violence to persons, the need to arrest
  immediately is substantial or
• c. unknown suspect If the fleeing driver has
  not been positively identified or cannot be
  apprehended later without risking harm to any
  victim, hostage, or member of the public, the
  need for immediate arrest may be substantial.

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Pursuit Intervention Tactics

• VIII. Pursuit Intervention Tactics
• A. The intentional physical interference with the
  operation of the pursued vehicle constitutes a
  use of force subject to the Sheriffs Use of
  Force Policy set forth in Section 3.15. Some
  techniques, outlined below, may be considered the
  use of deadly force depending upon the
  circumstances in which used. The use of deadly
  force to terminate a pursuit is constitutionally
  permissible where the pursued suspect has driven
  and continues to drive his vehicle in a manner
  and under traffic conditions that expose innocent
  motorists and/or pedestrians to an unreasonable
  risk of serious injury or death.
• Stop Sticks
• A supervisor, if available, must authorize
  deployment of Stop Sticks or a similar tire
  deflation system . . . .
• P.I.T. Maneuver
• A supervisor, if available, must authorize a
  deputys use of the P.I.T. (Pursuit Intervention
  Technique) maneuver in an effort to terminate a
  pursuit.
• When conducted at speeds of 45 m.p.h. or below,
  the P.I.T. maneuver is not considered the use of
  deadly force.
• Only deputies that are trained in the P.I.T.
  technique may perform the maneuver.
• When a P.I.T. maneuver is contemplated, a
  supervisor may authorize a third unit to
  participate in the pursuit. Where feasible, one
  unit shall be designated to use the technique.
  The other two units shall be assigned to conduct
  high-risk traffic stop procedures on the pursued
  vehicle following its immobilization.
• Ramming
• The intentional ramming of a pursued vehicle
  (other than use of the P.I.T. maneuver as
  outlined above) may likely be considered the use
  of deadly force. For that reason, a supervisor,
  if available, must authorize the intentional
  ramming of a pursued vehicle.
• Use of Firearm
• The discharge of a firearm at a pursued vehicle
  is considered a use of deadly force and must
  therefore be authorized by a supervisor, if
  available, unless the deputy is himself being
  fired upon.

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