Police and Pursuit: Damned if They Do, Damned if They Don’t?
By Ken K. Gourdin
From the mid-to-late 1990s into the early 2000s, after several high-profile cases in which people were injured or killed during police vehicle pursuits, there was a movement to curtail law enforcement’s discretion to pursue. Many lawsuits have been filed over harm that has resulted when police have pursued violators. I wrote against this movement, writing that curtailing police discretion to pursue attempted to solve the problem from the wrong end.
In a letter to the editor regarding pursuit by Utah Highway Patrol personnel of George Todd Kennedy and Jason Scott Pearson, which commenced after the teenagers drove away without paying after filling Kennedy’s mother’s car with gas and continued as Kennedy had Pearson take the wheel while Kennedy fired at pursuing officers, striking and killing UHP Trooper Dennis “Dee” Lund, I wrote in part:
Yes, police pursuits can be dangerous. However, in most cases the danger comes from the irresponsible actions of those being pursued, not from the officers’ decision to pursue. This is what many people who favor unwisely curtailing the discretion of police to pursue have failed to realize. Further inhibiting law enforcement’s ability to pursue violators will, as likely as not, give violators the idea that whatever they do wrong, all they have to do to escape responsibility for their actions is to successfully evade the police. This would then be as simple as stepping on the accelerator, which would endanger more lives, not fewer.
It is, therefore, ludicrous to suggest that the best way to curb the danger inherent to police pursuits is for police not to pursue. The best way to curb this danger is for violators not to evade. That is the option which Pearson and Kennedy rejected, and it is that choice, not the officers’ decision to pursue, which ultimately led to Trooper Lund’s death.1
Today, many agencies have instituted policies limiting circumstances in which their officers may pursue, prohibiting them from pursuing, for example, if only minor traffic violations have been committed, or limiting pursuit to attempts to apprehend felony suspects. However, could a story in today’s Salt Lake Tribune (along with similar cases) indicate a change in the direction of the pendulum’s swing?2 The Tribune story detailed a Utah County Sheriff’s deputy’s interaction with a motorcyclist, who, although traveling at a high rate of speed, slowed down when he saw the deputy, but then accelerated once again after he passed him The motorcyclist reached speeds in excess of 90 miles per hour, and because of the high speeds involved, the deputy decided not to pursue him. Despite the fact that he wasn’t being pursued, the motorcyclist then collided with another vehicle and died.
Could an enterprising lawyer make out a cause of action against this deputy and his agency for negligent failure to pursue? Your honor, my client’s loved one would be alive today if this deputy hadn’t blatantly shirked his duty! Had the deputy pursued him into heavy traffic, the decedent would have seen ‘the writing on the wall,’ realized that he wasn’t going to get away, and submitted t the deputy’s attempt to apprehend him! It’s only because this deputy shirked his duty in that regard that my clients have lost the companionship and support of their loved one! Were it not for that, he’d still be alive today!
Okay. Is this scenario unlikely (to say the least!)? Yes. Is it far-fetched? Yes. Improbable? Yes. But not impossible. And whether such an argument ever is marshaled in support of a lawsuit, some of law enforcement’s most unrelenting, least-placable critics are likely publicly to air such an argument in their endless efforts to find fault with those who are sworn to protect them. And if that’s true, it puts law enforcement in a difficult, “damned-if-they-do pursue, damned-if-they-don’t pursue” position.
1 Ken K. Gourdin (August 12, 1995) “Lawful pursuit” (Letter to the editor) The Salt Lake Tribune A10, copy in author’s possession as of July 22, 2013.
2 See Janelle Stecklein (July 22, 2013) “Orem man dies in high-speed motorcycle crash,” The Salt Lake Tribune, accessed on line at http://www.sltrib.com/sltrib/news/56623981-78/deputy-martinez-oomrigar-orem.html.csp, on July 22, 2013.