Time to revisit vehicular pursuit laws

That innocent persons injured or killed by Los Angeles Police Department vehicular pursuits not only spiked this past year, and at a rate that compares unfavorably with departments across the state, is reason enough to review the related LAPD policies for their effectiveness in promoting the common good. But it is also reason for revisiting the related state law, the effectiveness of which similarly compares unfavorably with every other state in the union, the reason why California, even adjusted for its size, is where most such carnage occurs.

In Nguyen v. City of Westminster (2003), the appellate court reviewing a wrongful death action brought by the survivors of a person who was killed by a reckless vehicular pursuit across a school playground, which terminated where he was recycling bottles from a dumpster, reluctantly upheld the lower court's dismissal based upon its reading of the broad immunity, but not before commenting on the sad state of the law in California.

Expressing its displeasure with California Vehicle Code Section 17004.7, the court noted that a reason for extending immunity to a public entity which adopts a written policy on vehicle pursuits is to advance the goal of public safety. But the law in its current state simply grants a "get out of liability free card" to public entities that merely go through the formality of adopting such a policy. That is, the departments' officers do not actually have to follow the policy in order to invoke a blanket immunity. That the otherwise ignored policy merely exists is enough. The court was further troubled that, as a result, the pursuit did not have to go through a court's formal review, and innocent victims were afforded no legal redress.

California is an outlier. Most states provide review and redress under various statutory schemes that set a standard somewhere between negligence, recklessness, gross negligence, willful or wanton misconduct, discretionary immunity with limited exceptions, or some hybrid of these concepts. One outlier on the other end of the bell curve is Nebraska, with a provision close to strict liability which provides that innocent third parties' injury and damage come directly out of the budget of the police agency responsible for the pursuit.

One may assume that the deterrence rationale underpinning tort law reliably functions well given that Nebraska typically has, per the National Transportation Safety Board's statistics, the lowest level of fatalities resulting from such pursuits. California, where such pursuits are afforded near blanket immunity, routinely tops the list.

Since Nguyen, there have been energetic efforts to reform the law, followed by law enforcement interests pushing back, largely motivated by sentiment that the act of subsequently reviewing pursuing officers' judgment unfairly dilutes the moral blameworthiness of those drivers fleeing law. The political result has been that legislators have taken the less controversial path of increasing criminal penalties on fleeing drivers. Not only have those efforts had limited effect, as such drivers, caught up in the moment and often under the influence, are already acting irrationally and unreflectively, but the increased punishment yields diminishing returns as, to the extent such drivers are making minimally rational calculations, draconian punishment often motivates the contrary impulse to escape from, rather than submit to the law.

Reformers have been working hard on gathering improved statistics, encouraging and funding new training and new techniques of safer apprehension, and finding better ways of discriminating between necessary pursuits and those for which costs outweigh benefits. The pursuit, for example, of suspects fleeing under the influence of alcohol or drugs is, on its face, compounded madness. As it is, the rate of pursuits ending in collision already reliably hovers between 33 and 40 percent. Such reflexive pursuits radically increase the odds of causing the feared tragedy that is otherwise the rationale for getting the impaired driver off the road.

Reformers' efforts notwithstanding, implementation of better police patterns and practices typically relies upon the pressure and feedback from court review of cases brought by litigants directly involved. Regarding pursuits, it is particularly important that the California Legislature get it right because a gap exists such that federal law fails to provide the backstop otherwise found in most areas of police practice. Unlike police uses of excessive force, for example, which are analyzed under a Fourth Amendment objective reasonableness standard, conservative leaning justices in cases such as County of Sacramento v. Lewis (1992) typically have analyzed the taking of a life or damage to property at the end of a police pursuit under the Fourteenth Amendment and, therefore, apply a more forbidding, subjective standard of whether a pursuit "shocks the conscience."

Moreover, these conservatively leaning justices are characteristically more predisposed, out of concerns associated with federalism, towards limiting the scope of constitutional protections of persons vis à vis police, thereby protecting state government coffers against individuals' claims. Additionally, they are more receptive to affirmative immunity defenses proffered by police out of the justices' closer self-identification with police defendants' concerns over plaintiffs seeking a recovery. The recent presidential election results suggest that a reversal of such trends on the high court are off the horizon. The result is, at the federal level, there is and will be no effective review, remedy or positive feedback loop. On these issues, reform must occur at the state level.

In Sacramento, there is a popular governor in his last term. His party controls both legislative chambers. There are reasons why even conservatives who have, in the past, opposed such reform, might now rally around such changes. The first is that all the main conservative counter-proposals on the subject, such as increasing criminal penalties and budgeting funds to publicize such penalties, have been implemented and have failed, as has been empirically demonstrated by the mandated statistics gathered as part of the same legislative reforms. Moreover, the idea that innocent persons should randomly, but predictably serve as crash bumpers for terminating ill-conceived pursuits is, itself, state actors playing out an offensive game of chance inconsistent with liberty. Officers, themselves, are placed in danger from indiscriminate pursuit. And, callous as it may sound, if accurate records on the aggregate damage to police vehicles were kept, that literal and figurative hit to taxpayers' interest alone would likely reveal the inefficiency of overly expansive pursuit policies.

There will always be some dangerous felons or situations where the need for immediate detention outweighs restraint or less dangerous tactics. Such instances will survive court review. Nonetheless, there will also always be some officers that joined the police force, in part, to scratch an itch incubated at a game console or by watching Fast and Furious. Those resulting objectively unreasonable decisions causing injury and damage to the innocent will, with all due consideration given to the circumstances of each event, merit court review, remedy and remediation.

There is, then, no defensible reason why California should be the outlier on this issue, why California should depart from rules applied in 49 other states, or, most importantly, why

California residents should be randomly picked off as the detritus of such pursuits more than in any other state. The time for this reform is now.