|DAILY JOURNAL NEWSWIRE ARTICLE
© 2004 The Daily Journal Corporation.
All rights reserved.
April 26, 2004
OFFICERS MUST BE ACCOUNTABLE FOR INNOCENT VICTIMS OF PURSUITS
By Robert L. Bastian Jr.
The state Legislature should
enact SB1866, the bill to repeal police immunity for injury-causing police
chases where the public is not otherwise in "imminent peril." The legislation
promotes public safety, fairness and governmental accountability. Its only
flaw is that it does not go far enough, making injury to innocent bystanders
a matter of strict liability.
The bill's text recites
data from the National Highway Traffic Safety Administration that, in 2001,
365 fatalities resulted nationwide from police pursuits. California had
the highest number of fatalities, 51, of which 24 were innocent bystanders
- one innocent fatality nearly every two weeks. Scholars familiar with
the reporting system from which these numbers are derived, Fatality Analysis
Reporting System, believe they are, for various reasons, understated.
The research of a nationally
recognized expert in police pursuits, professor Geoffrey Alpert, indicates
that 40 percent of pursuits end in crashes, 20 percent in personal injury
and 1 percent in death. Alpert observed that, since 1985, these percentages
are consistent from study to study, jurisdiction to jurisdiction, regardless
of pursuit policy.
But the death that grabbed
the attention of the bill's sponsor, Sen. Sam Aanestad, described as a
law-and-order Republican from a rural district, was that of his 15-year-old
constituent, Kristie Priano, a promising, popular and loved honor student,
class officer, community volunteer and athlete.
The Chico police were engaged
in a high-speed chase of another teenager who took her mother's car without
permission. Even though they knew where the joy-riding girl lived, police
pursued the car at high speeds through numerous intersections until the
fleeing car struck the van that Kristie was riding in, killing her.
The law requires police
departments to have promulgated written procedures for police chases to
immunize the officers. Remarkably, the law does not require officers to
follow those procedures. Nor does it set standards for the quality of the
Regarding the chase resulting
in Kristie's death, Chico Police Chief Bruce Hagerty stated that the officers
"As pursuits go," Hagerty
said, "this is as controlled as you can get."
That is precisely the problem.
Police chases are, according
to Los Angeles Sheriff Lee Baca in a letter to Aanestad opposing the bill,
"extremely complex, dynamic and unpredictable events."
But, as such, they are extremely
simple and predictable in their result: the more police chases, the more
unintended consequences, carnage and tragedy. All the more reason to subject
them to outside supervision.
Police opposition focuses
on the legislation's potential cost in terms of municipal liability. The
issue, however, is not so much what the cost is as who shall bear it?
The law is that the innocent
victim injured, maimed or killed at random must bear the entire cost of
such policies. The logic of the law is that police pursuits are not so
important that the public should underwrite their foreseeable costs but
important enough to impose a negative lottery ticket on the Kristie Prianos
who are mowed down at random.
The ethicist John Rawls
famously tested the fairness of public policy by conducting a thought experiment,
positing a veil of ignorance: If everyone was afforded a pre-understanding
of the distribution of a policy but was unaware on whom the distribution
fell, would he or she consent to the policy beforehand? If we know in advance
that police pursuits to benefit the polity are going to mow down innocent
victims, would we distribute the cost of that benefit across the polity
or concentrate it only on the victims?
People would be unlikely
to disagree about whether a child should be sacrificed for the overzealous
enforcement of law that, with but a little police patience, could have
been enforced, anyway. Holding such negative lottery tickets is not part
of the social contract.
Supporters of police pursuits
complain that the question, as phrased, misdirects blame away from the
person who started the pursuit. Instead, critics suggest the better approach
is increased criminal penalties for fleeing.
But it takes two to form
a pursuit. The issue is not inviting a pursuit. It is accepting the invitation.
Added criminal penalties are unlikely to deter where a fleeing suspect's
judgment, presumptively lacking, is impaired by alcohol, drugs, mental
illness or, in the case of the driver who slammed into the van carrying
Kristie, teenage immaturity.
If people assume that police
pursuits serve a public benefit, then the public should pay the cost. Still,
Baca warns against a potentially "enormous liability" for law enforcement
from the bill. Impliedly, then, the more "enormous" the liability, the
more enormous the cost now unfairly imposed at random.
Finally, some police officers
express resentment, even a sense of betrayal, at the thought of having
their streetwise judgments questioned "with the benefit of 20/20 hindsight"
in the sanctity and calm of court.
In court, however, the defendant
police officer's job is not at stake, nor does he face discipline as he
might under the present system of internal police department review to
determine whether he followed the department's promulgated policy. At stake
in court is, Who shall pay the otherwise private cost of a public benefit?
The real second-guessing
comes from the responsible department heads or municipal entities in determining
whether such chases are, after accounting for all of their costs, an effective
use of budgetary resources. That is, those managing public resources must,
when confronted with the entire costs of their policies, continually review
whether the benefits outweigh the costs and justify those decisions to
Those are the real decisions
which, under the new law, will be subject to second-guessing. In short,
SB1866, by more closely matching the costs of such policies to the perceived
benefits, results in a public policy not only of greater fairness but also
of greater accountability.
Under the current law, all
the parents of Kristie Priano can do is maintain a Web site dedicated to
their daughter and continue to lobby their elected representatives in Sacramento.
In the process, though, they have turned their tragedy into a proposal
that promotes safety, fairness and public accountability.
Robert L. Bastian Jr. Esquire
is a partner in Bastian & Dini in Los Angeles and a long time UNION