Most officers get involved in a pursuit sometime during their career, and many take part in more than a few. Whenever the conversation turns to pursuit driving, someone can be counted on to say, "Well, what are we supposed to do? We don't have many options in a pursuit. We're damned if we do and damned if we don't!"
While it's true that pursuits are hazardous and can be difficult to manage, it's just not true that we have few options in dealing with them. In fact, we have a whole toolbox of techniques that can be employed in managing a pursuit. Sometimes we haven't been trained in how to use some of those tools properly, so they're out of the question (for now). At other times, the administration of our department has acted to restrict our use of some tools, frequently out of a concern for liability. At still other times, we decide that a particular pursuit management technique is too risky, so we take it off the table.
All these things may be true, but that doesn't mean that we don't have the tools--it just means that we are unable or unwilling to use them, for whatever reason. Some of those reasons are good ones, but many others are predicated on a misunderstanding of the risks, be they legal or physical, and still others are blamed on a lack of money for training and equipment.
Let's take a look at the tools that are generally available, and some of the issues surrounding them. One thing we know for sure--if things go sour, we're going to have to justify what we did or didn't do to a whole lot of people. This issue we'll start with the big question, and next time we'll delve deeper into tactics.
The First Pursuit Management Option
Of course the first management option is to not pursue at all, or if the pursuit has already started, to voluntarily disengage. This is the "damned if you do and damned if you don't" part. Many officers believe that, should they decide to disengage from a pursuit (notice I didn't say "terminate"), and the bad guy goes off down the road and hurts someone, they will be held liable. This belief is so pervasive in law enforcement that, even when officers are shown the truth, many still don't believe it.
The reality is that it's just not true. Nothing could be further from the truth. In fact, the exact opposite is true: Officers are required to disengage under certain circumstances, and when they do, they are in compliance with the law.
Take a look at your motor vehicle code. You'll find sections dealing with operation of emergency vehicles and the special privileges that their operators enjoy. This is typically referred to as the "exemption." While its not exactly the same in every jurisdiction, generally the requirements to gain the exemption are:
- You must be operating an authorized emergency vehicle
- You must be responding to an emergency
- You must be using both visual and audible warning equipment (with some statutory exceptions)
and--this is the big one - You must operate the vehicle with due regard for the safety of others.
That last clause, "due regard for the safety of others," makes you responsible for doing what is reasonable to safely conduct a pursuit. Essentially, the law holds you, the emergency vehicle operator, responsible for the safety of the pursuit. And, part of the "safety of the pursuit" is to stop pursuing if the risks become unreasonable.
So, there's your answer--you may be damned if you do, but you won't be damned if you don't. This is a public policy issue, and it goes like this: How can the law require you to do something, and then penalize you when you do it? The simple fact is that it can't; that would be contrary to public policy.
By the way, there are a couple of other dimensions to this question. First is the whole "due regard" issue. What exactly does that mean? In effect, it means that you met the reasonable person standard--you remember that from the academy, right? The reasonable person standard says that you should do what another person, similarly situated, is likely to have done. It doesn't mean you have to be perfect, only that you acted reasonably.
The second issue is this thing about your level of responsibility. When coppers sit around talking about pursuits, another thing commonly heard is, "How can I be responsible for what the fleeing driver does? I'm not driving his car!" The answer to this one is that you're not responsible for what the fleeing bad guy does--you're responsible for what you do. If you continue an excessively risky pursuit, and someone is injured as a result, you might be held responsible. In essence, the rule here is that when a pursuit becomes unreasonably risky, you are responsible for disengaging, therefore ceasing the pursuit.
Deciding What is Risky
How do you decide what is unreasonably risky? That's the toughest question here. You could think about it all day, and still not be able to put your finger solidly on it.
In the case Graham v. Connor, the U.S. Supreme Court addressed the issue of objective reasonableness in the use of force. The Justices said that the, "...test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application...", but that it must be viewed from the perspective of the reasonable officer on the scene, in light of the totality of the circumstances that he or she faces. While that case, and the objective reasonableness standard, is not applicable here (except in cases of forcible termination--another story altogether), the language chosen by the Court could certainly be appropriate.
The definition of reasonableness in a pursuit is not capable of precise definition or mechanical application. It really comes down to "you'll know it when you see it." In effect, although that definition seems soft, it's the way you do lots of things every day. Any time you "go with your gut," or just try to do the right thing, you're applying this standard. You are considering a situation as another person might, in light of the totality of the circumstances. Considering everything, you decide on a course of action, and you implement it. Monitoring the situation as it evolves, you adjust your actions as the circumstances change.
You do your best to keep everyone safe (including yourself), and you try to do the right thing. That's the real standard that you should strive for when you're managing a pursuit or any other driving situation.
Can you get sued? Of course. Any time you injure anyone, that possibility (probability?) exists. But by being safe, being smart, and doing your best to do the right thing, you'll leave yourself in a better position to defend your actions. How can anyone blame you for that?
Stay safe, and wear your vest! (and Buckle Up!)
Note: Nothing in this article should be considered legal advice--I'm not an attorney. These are operationalized concepts that incorporate basic legal principles. Seek advice from your department attorney.
