Police pursuits: apprehension versus public safety

The sentiment of walking a mile in another's shoes is reciprocal. When defense counsel, taking his client's side in a police misconduct wrongful death case, chipped at my colleague, asking if he didn't want to go for a ride-along to feel the dangers of police work, countering, I called. Reciting the pertinent facts, I asked if we couldn't - employing parallel reasoning - pursue defense counsel down an alley for no reason supported by probable cause, beat him with a nightstick, and then shoot him dead.

Regarding police practices, unexamined presumption reflexively draws an equal and opposite reaction. Whereas former Philadelphia mayor Mario Rizzo defined a conservative as a liberal mugged by reality, Thomas Wolf retorted a liberal is a conservative who has been arrested.

"Antagonism" derives from a Greek word associated with competition, in particular, the Ancient Greek drama competitions in which the likes of Sophocles and Euripides perfected the concept of tragedy and, thereby, forged a deeper sense of the human condition.

Aristotle famously elaborated that tragedy is an imitation of action that is serious, complete, and of a certain magnitude, with incidents arousing pity and fear. Tragedy's purpose, he explained, was to effect a katharsis of such emotions. In essence, albeit risking oversimplification, audience members, by experiencing such antagonisms enacted, leave the theater having their troubled state resolved with relief that, "there, but for the grace of God, go I."

Before, then, revisiting whether current California law regarding police vehicle pursuits adequately strikes a balance between apprehension and public safety, before examining evidence and arguments, calculations and inferences, it might first be required of those who would weigh in on the subject, to experience representation of the relevant tragedy - the experience of one's beloved becoming a traffic fatality. Only through informed empathy for those who actually suffer the experience do we duly, humanely and intelligently address the problem.

My idiosyncratic choice would be a brief section from "Ball Four," the latest audio edition, read by author, Jim Bouton. "Ball Four" is a baseball pitcher's autobiographical account of a season in the big leagues. Controversial when released in 1970 because Bouton revealed rust behind polished chrome, such as that a hero like slugger Mickey Mantle had a notorious drinking problem, the book nonetheless achieved acclaim because it was honest, witty, sly, ribald and often hilarious. So too is the addendum to the latest addition where Bouton updates his readers on his continued efforts to play and, thereafter, report on the game.

Seemingly, though, out of the wide blue of a boys-of-summer sky, Bouton recounts receiving a phone call. His daughter has been in accident. Like the crack of a bat, the narrative arc instantly changes. The pitch in the narrator's voice with whom the listener has become comfortable, turns instantaneously and progressively searing.

It's not enough just to read the juxtaposition between going to the hospital and memories of his child growing up, looking doctors in the eyes, then looking into the mind's eye. Rather, it's hearing the actual father recount how, as a small child, she tried to climb a fence with a peanut butter sandwich in hand and, getting stuck at the top, surveying the situation and realizing both that she probably needed her sandwich-holding hand free and that it was close to her mouth, chose to take a bite out of the sandwich. This child, as a young adult perished instantaneously in the collision.

The loss is not abstract, not lightening striking. It's palpable, real, an event that, but for the grace of God, happens to you or I.

Recently reported this past month by the local NBC affiliate, the CHP engaged in a high-speed pursuit of a suspected drunk driver evading arrest. The restraining wall that ended this pursuit was a busy Boyle Heights taco stand and a 19-year-old bystander, killed and torn so to pieces the CHP would not let her mother near. Was it necessary?

In 2002, Candy Priano suffered a clear enough instance of an unnecessary high-speed police pursuit. The officer continued through a residential neighborhood knowing that the suspect was a teenager joyriding in the family car without mom's permission. He knew the teenager's address. Rather than meeting her later at home, though, the restraining wall in this instance was the Priano's minivan, T-boned by the fleeing teenager. Candy's husband required hospitalization for his injuries, but survived. Daughter Kristie, however, a 15-year-old honor student and basketball player on her way to a game, perished.

The Prianos would learn that California law offers no recourse for such police pursuits, no matter how out of policy, poorly conceived or executed. Among states, only California says that it is enough for the department merely to have a policy, not that its officers actually follow it.

In Nguyen v. City of Westminster (2002), for example, police pursued a stolen van across a schoolyard. The restraining barrier included a trash dumpster which, in turn, was propelled into, seriously injuring, a man standing nearby. The appellate court's opinion directly addressed the Legislature, descrying the "get out of liability free card" granted law enforcement.

Having little other choice, Candy Priano took her case to the state Legislature. In 2005, the Legislature acknowledged that, for the past 20 years, California led the nation in the number of innocent bystanders killed by such pursuits. But rather than repeal immunity, the heavily lobbied Legislature's reflex was to toughen criminal penalties on the pursued, and to provide more funds for training and awareness.

So, one-half decade hence, how has it worked? Not surprisingly, California's outlier experiment in the Brandeisian federal laboratory hasn't fared well.

In 2010, according to the latest CHP annual report to the Legislature, one in three of the 5024 police pursuits which California law enforcement did not call off ended in collision. Of those, 34 percent ended in injury 2 percent in fatalities. Of the 32 dead, 17 were drivers, the others, passengers, law enforcement or bystanders.

Although the vast majority of pursuits began as suspected offenses of (1) speeding; (2) stolen vehicle; (3) stop sign violations; and (4) reckless driving, the report notes that criminality is often involved in the flight, such as someone avoiding probation. The report notes that 66 percent of the non-aborted pursuits resulted in further charges of serious crimes, albeit not recording whether it was the evasion's results noted as the serious crime.

The CHP report pats law enforcement's back, editorializing that the "number of lives saved, and property protected by the pursuit and apprehension of suspects who attempt to evade arrest is intangible." It is, indeed, intangible, because, other than the facts recited above, the report provides no evidence whatsoever to support this conclusion.

Whereas the carnage is tangible, the yield in terms of law enforcement is pathetic. Setting aside the butchery, a collision for every three arrests is a ridiculously inefficient program of deterring auto theft or snatching parole violators. As an expenditure of public resources, it fails to justify even the loss in bumpers. And at that rate, you can stop calling them accidents.

Since 2005, the arguments against change haven't changed. They are that blame should be placed on, and limited to the evader; that criminal penalties must be enhanced to deter evasion; that the good faith and judgment of police should never be questioned; and, finally, that "chaos" will develop if evaders are not pursued.

Blaming the evader, though, fails to stop the carnage. And the dubious assumption behind enhanced criminal penalties is that the evader is even engaged in rational calculation. Just this past month, after colliding with three cars, leaving five injured at the end of a high-speed pursuit in Hollywood, the intoxicated, arrestee bragged from the patrol car to reporters, "Stop? Why stop? Why stop when I'm an artist?"

Regarding officers' good faith, it does little to platitudinously praise a whole platoon of sensible officers if but one momentarily mistakes oneself for Batman, validated and uninhibited by the presumed badness of the chased, and intoxicated by the chase.

Finally, there is the slippery slope argument - that public chaos will develop if officers are legally inhibited, the same argument made to the U.S. Supreme Court when, in Tennessee v. Garner (1985), the court ruled that the Fourth Amendment prevented police from shooting a fleeing suspect who did not pose a significant threat of death or serious physical injury to the officer or others.

Somehow we have managed to get through the past 37 years with officers restrained from shooting at fleeing felons across schoolyards or into taco stands.

Nor has public chaos resulted in Nebraska, the other pole of the Brandiesian laboratory, where the cost of injury to bystanders comes, by law, directly out of the pursuing department's budget, a standard of near strict liability.

So, would taking away immunity, giving law enforcement not just an emotional, but a monetary stake in their practices, save lives and improve public policy? Would it be better if their damages had to be adjusted, just like it is for you and me when we are in an accident?

Well, how many such police pursuit tragedies occur in Nebraska? According to the NHTSA in the last five years reported, the number of fatalities of police officers, non-driving occupants or bystanders suffered at the end of police pursuits in Nebraska is: zero.