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Balancing the need versus the danger

By Jack Ryan, PATC Legal & Liability Risk Management Institute

While carrying out their responsibility of public safety, officers are sometimes forced by the actions of others to undertake high-speed driving which by its very nature can compromise the safety of the motoring public.

These pursuits sometimes end with vehicle collisions involving innocent people whose only involvement is being on the road at the time of the pursuit. Many officers are seriously injured or killed during these events as well. While the blame clearly lies with the subject who decides to flee, law enforcement is often blamed for the tragic results which occur during pursuits.

The United States Supreme Court has significantly limited the prospects of a plaintiff in bringing a federal claim against police officers or municipalities for pursuits ending in tragic results. However, there has been no such limitation on lawsuits based on state tort claims for these pursuits. Municipalities and officers must recognize that regardless of the lack of federal liability, there are still state law claims as well as exposure in state court for criminal actions brought against officers for reckless conduct undertaken during pursuits and the consequences of such conduct.

Most states have an "Emergency Vehicle Operation" statute which provides officers with the ability to violate various rules of the road when on the way to a true emergency or when in pursuit of a law violator. The statutes allow officers to exceed the maximum speed limit; pass stop signs and red lights after slowing to make sure it is safe; and to operate against traffic on roads where direction is controlled. The statutes vary throughout the United States, but most have a provision that the officer can only operate in an emergency fashion if the officer is using his emergency lighting or siren.

Generally emergency operation statutes have language indicating  that the officers are not relieved from the "consequences of a reckless disregard for the safety of other motorists." This language, which includes a "reckless disregard" provision, gives officers some heightened protection if a lawsuit occurs.

Most states through their courts interpreting this language hold that an officer who has acted only negligently during a pursuit has not acted with reckless disregard. Under South Carolina law, police vehicles are "emergency vehicles." (SC Code 56-5-170) Unlike most states, the South Carolina statute does not have the "reckless disregard" provision but instead indicates: "The provisions of this section do not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons." (SC Code 56-5-760)

In Clark v. SC Department of Public Safety, the South Carolina Court of Appeals pointed out that in 1990 the South Carolina Legislature changed the language in the emergency vehicle operation statute from the common "reckless disregard" language to a "due regard for safety" of others standard. In doing so, the Legislature imposed a more significant duty of care on law enforcement officers while operating in the emergency vehicle mode. While not a straight negligence standard, it is a gross negligence standard which is much different than a reckless standard.

In an effort to protect officers, the public and even those who flee, municipal officials must develop reasonable policies addressing emergency vehicle operation and specifically pursuits.

Officials should recognize that because of the state of the law in South Carolina, policies may need to be even more restrictive than in states that provide the heightened protection afforded under a recklessness standard. Some of the common restrictions would include limiting pursuits to those cases where the suspect is believed to have committed a violent felony or poses a threat to the motoring public prior to the involvement of the police. Heightened supervisory oversight along with reasonable pursuit termination provisions should be included as well. While there is a need to pursue suspects in many cases, this need must be balanced against the potential threat to the public and the pursuing officers during the pursuit.

The South Carolina Municipal Insurance and Risk Financing Fund and the Public Agency Training Council developed model policies for use by SCMIRF-member law enforcement agencies. These policies cover the high risk critical tasks in law enforcement including pursuits. The pursuit policy balances the needs of law enforcement with the safety of officers and the public who may be impacted by these pursuits.

Jack Ryan is a former police captain from Providence, Rhode Island. He currently serves as co-director for the Legal and Liability Risk Management Institute. Ryan will present a session on police pursuits at the 2013 Annual Meeting.

SCMIRF, a program of the Municipal Association, provides all lines of property and casualty coverage including tort liability for its member municipalities.