Statistics prove that a large number of innocent bystanders are injured or killed each year during high-speed police chases. Under the current non-mandatory reporting guidelines, statistics show that on average more than one person dies each day as a result of police pursuits; one-third of those killed are innocent bystanders.1 This significant number should stress the fact that police chases are a foreseeable part of police procedure and should only be undertaken when necessary.
However, statistics also show that police pursuits for non-violent offenses, i.e. traffic violations, make up the majority of police pursuits. 2 While police pursuits are allowed under the policies and procedures of most law enforcement departments, there are guidelines and procedures that must be followed if such pursuits are to be conducted as safely as possible. In Georgia, innocent bystanders, or their representative at law, may be able to hold police officers accountable for their damages if their injury or death was caused by a reckless disregard of proper police procedure. Were it otherwise, these policies and procedures would be worthless and the public would have no protection.
Tort Cause of Action
The Georgia tort cause of action for a reckless police pursuit is codified in O.C.G.A. § 40-6-6(d)(2), which states in pertinent part that:
When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation.
O.C.G.A. § 40-6-6(d)(2)(emphasis supplied).
While some might think that a cause of action under Georgia tort law may have been overruled by the United States Supreme Court case of Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L.Ed.2d 686 (2007), this is not the case. These cases are still viable in Georgia and they are still important in order to protect the rights of innocent citizens endangered by reckless high-speed police pursuits.
Notable United States Supreme Court Decisions
Georgia law provides that innocent victims killed or injured by a reckless high-speed police pursuit should have legal remedies for damages caused by such actions. However, there is a misapprehension among some that Georgia tort law may have been overruled by the United States Supreme Court case of Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L.Ed.2d 686 (2007). In Scott, a fleeing suspect contended that he had been subjected to an unreasonable search and seizure under the Fourth Amendment of the United States Constitution when the pursuing officer rammed the fleeing suspect’s vehicle and forced him off the road, resulting in his paralysis. Scott held there could be no Fourth Amendment violation for an unreasonable “seizure” of the fleeing suspect, as the state’s interests in pursuing a fleeing suspect always outweighed the possibility of harm to the criminal, who had deliberately placed himself in that situation. Accordingly, Scott and other unreasonable search and seizure cases under the Fourth Amendment to the United States Constitution, must be analyzed solely under constitutional principles. The Fourth Amendment is designed to limit government force resulting in injuries or death to the “criminal perpetrator,” but it has no applicability to state tort law claims where an innocent bystander is injured in a high-speed pursuit and brings an action under applicable state tort law. Thus, notwithstanding the holding of Scott, state tort claims predicated under O.C.G.A. § 40-6-6(d)(2) still provide protection for innocent third parties caught up by happenstance in such situations.3
Long before Scott v. Harris was decided, the U.S. Supreme Court had already held that the same test should not be used to evaluate both an innocent bystander’s state tort law claims and alleged constitutional violations in unreasonable high-speed pursuit cases. An innocent bystander may generally not file an action against a governmental entity for alleged constitutional violations of the Fourth or Fourteenth Amendments because the governmental action is not “directed” at the innocent bystander, but rather at the fleeing motorist, and thus no “seizure” of the innocent bystander occurs. See E.G. County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). In Lewis, the Supreme Court specifically held that the test for a constitutional violation during a high-speed pursuit under the Fourth or Fourteenth Amendment is a different analysis than that utilized in a tort claim brought under applicable state law, because a Fourth or Fourteenth Amendment violation requires deliberate indifference or a deliberate intent to cause harm, and a deliberate seizure of the injured party.
In Lewis, the Supreme Court held that a police officer does not violate the Fourteenth Amendment’s substantive due process rights when causing the death of a teenager, who was killed when the Defendant police officer’s patrol car, at the end of a high speed chase, hit the motorcycle on which the teenager was a passenger, as it was undisputed that the officer did not intend to hit the teenager with his patrol car. The Supreme Court in Lewis adopted a “shocks the conscience” test for constitutional violations in a high speed pursuit case, holding that in a pursuit, only a purpose to cause harm to the fleeing suspect unrelated to the legitimate object of the arrest could result in liability for a constitutional violation. Id. at 836.
The Supreme Court in Lewis also made clear that the test for determining liability for a constitutional violation is different than the test for determining liability in a tort claim, as the Constitution is not “a font of tort law.” Id. at 848. Indeed, in order to pursue a claim for a constitutional substantive due process violation, the court held that a fleeing suspect was required to prove that the government acted “arbitrarily,” and concluded that, “only the most egregious executive action can be said to be arbitrary in the constitutional sense.” Id. at 847. The court specifically held that in a police pursuit, under a constitutional analysis, only “deliberate indifference” and a “purpose to cause harm unrelated to the legitimate object of arrest” will satisfy the “shocks the conscience test,” and that pursuits with “no intent to harm suspects physically or to worsen their legal plight” do not give rise to a substantive due process constitutional violation. Id. at 854. The court also reaffirmed that there could be no Fourth Amendment violation, as such claims only cover illegal “searches and seizures, Id. at 844, and there can be no deliberate “seizure” of an innocent bystander in a pursuit.
“Reasonableness” under the Fourth Amendment also means the “reasonableness of a seizure of the person or property” in the criminal justice context. This constitutional analysis of what constitutes a “reasonable seizure” of a suspect has no bearing on “reasonableness” in evaluating a state law tort claim brought by an innocent third party injured in a high-speed pursuit. Under the applicable state law, O.C.G.A. § 40-6-6(d)(2), the pursuing officer in a state law tort claim owes the innocent bystander the duty to not act with reckless disregard for proper police procedure. In Scott, where the fleeing suspect filed the case, the Court held that it was appropriate under a constitutional analysis to take into account the fleeing suspect’s culpability in the balancing test. Scott, 550 U.S. 372, 384. Thus, a seizure and intrusion upon the rights of the fleeing suspect, which specifically permits a weighing of the fleeing suspect’s own intentional conduct, in placing himself in danger of injury in the high speed pursuit, is a balancing which is not permitted under state law tort claims brought by an innocent third party under O.C.G.A. § 40-6-6(d)(2).4
In a state tort law claim involving an innocent third party, there is no “balancing of the nature and quality of the intrusion on a fleeing suspect’s Fourth Amendment interests,” against the “importance of the government’s interest justifying the chase.” Instead, the balancing test under a state tort law claim takes into account the nature and quality of the offense committed, the risk and gravity of harm to the innocent public, and whether there was a violation of the police’s own policies and procedures in that the high-speed pursuit constituted a “reckless disregard for proper police procedures,” which resulted in injury to the innocent third party. Thus, the balancing test under state law is completely different than the balancing test used in a constitutional Fourth Amendment search and seizure case.
High-Speed Police Chases: StatisticsBecause of the high speeds obtained during police pursuits, if a third party is involved in a collision with either the fleeing suspect or the pursuing police vehicle, the injuries are likely to be either very serious or deadly. The data on injuries and deaths that occur in high-speed pursuit cases in the United States is deficient. There is a reporting mechanism available through the National Highway Traffic Safety Administration (NHTSA), but law enforcement agencies are not required to keep or report them. This incomplete data, kept annually for the past 20 years, indicates that at least one person is killed in high-speed police pursuits every day in the United States. Many experts on this issue have opined that because NHTSA data collection system is voluntary the reported annual statistics are grossly under-state. For deaths in high-speed chases, it is opined that as many as 2 to 3 times the numbers voluntarily reported annually represent the number killed each year; it is estimated that the numbers are really between 500 and 1,500 people killed each year. As for serious injuries, they are estimated to be 5 times the amount of deaths i.e., a range of 2,500 to 7,500 people seriously injured. This data illustrates that it is entirely foreseeable that someone may be killed or seriously injured in a high-speed pursuit, particularly if the pursuit occurs in an urban setting.
The sheer number of serious injuries and deaths is an indicator of a need for proper oversight of the policies and procedures governing high-speed pursuits, especially where the danger to the public caused by the chase itself is greater than the danger presented by the suspect being pursued. In order to minimize dangers attendant to them, most police departments throughout the country have policies and procedures that regulate an officer’s conduct on when and how to engage in a high-speed pursuit. Nonetheless, absent accountability and oversight of such policies they provide no protection for innocent victims who simply are at the wrong place at the wrong time during such an unreasonable high-speed pursuit.
Current Georgia Law under O.C.G.A. § 40-6-6(d)(2)
When the Georgia Legislature enacted O.C.G.A. § 40-6-6(d)(2), its intent was to protect the rights of innocent motorists who could be injured or killed during a high-speed police pursuit. Indeed, the Georgia Supreme Court specifically held well before Scott v. Harris was decided that the purpose of this statute was to protect the motoring public at large and not the fleeing suspect.5 The Court observed in City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879 (2003), that: “It is desirable that the officer overtake and apprehend the criminal, … it is equally as important that innocent persons, whether or not connected with the emergency to be met, not be maimed or killed in the operation.” Id. at 81. But, what conduct constitutes reckless disregard? Is it the conduct of the officer or the fleeing suspect? And, does the definition take into account the nature of the offense, e.g. a non-violent offense like shoplifting versus a violent offense like armed robbery? Or, are all offenses treated similarly under the “reckless disregard” standard?
In 2001, the Georgia Supreme Court decided the seminal case of Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001), further interpreting this cause of action. In Cameron, the Supreme Court held that in order to establish an actionable violation of O.C.G.A. § 40-6-6(d)(2) the plaintiff had to present expert testimony that there was a reckless disregard of proper police procedure and that such violation was a proximate cause of the damages sustained by the innocent victim of the unwarranted police chase. While it has been argued that the focus of the proximate cause analysis should be on whether the police officer operated his vehicle in a reckless manner during the pursuit rather than the police officer’s decision to initiate or continue the pursuit, that argument was denied by the Georgia Court of Appeals: “The relevant conduct is the decision of the deputy to initiate or continue the pursuit, not how he drove his own vehicle during the course of the pursuit.” Strength v. Lovett, 311 Ga.App. 35, 42 (2011). A plaintiff must also establish that the governmental entity being sued waived its sovereign immunity. Such a waiver is now statutory.6
In Strength v. Lovett, a young driver was pulled over for an improper u-turn, a non-violent traffic offense, and during this stop, the officer also found that the driver had a provisional drivers license and was only allowed to drive with a passenger above the age of 21; the one passenger in the vehicle was under the age of 21.While waiting for the arrival of the driver’s aunt to collect them and as the officer was writing the traffic citations, the driver suddenly drove away. The deputy gave chase and “[t]he pursuit covered more than four miles, and [the driver] and the pursuing deputy reached speeds of at least 90 miles per hour. In the course of the pursuit, the deputy observed [the driver] overtake other vehicles in a reckless manner and enter several intersections against traffic signals. As [the driver] entered the last of these intersections, his Blazer collided with a car in which …a passenger…was killed in the collision.” Strength v. Lovett, 311 Ga.App. 35, 37 (2011). In analyzing whether the officer’s action was the proximate cause of the innocent bystander’s death, the Court looked at the policy of the police department as well as the standard policy for law enforcement agencies and found that “both require that an officer balance the need to immediately apprehend a fleeing suspect against the risk to the officer and the public of initiating or continuing a pursuit.” Id. at 41. The Georgia Court of Appeals held that the record contained sufficient evidence that a jury could find that the deputy pursuing the driver “acted with reckless disregard for proper law enforcement procedures” as it was noted that the deputy did not intend to take the driver into custody for the traffic violations (the deputy had arranged for the driver’s aunt to take him home), and that the driver’s identity was already confirmed because the deputy still had the driver’s license as he was writing the citations when the driver pulled away. Id. at 41.
The Seminal Issue
Because of the numbers of deaths and serious injuries that occur each year in these high-speed police pursuits, it is entirely foreseeable that if proper police procedure is not observed, an innocent bystander can be seriously injured or killed. The argument is that because such injuries and deaths are foreseeable to the law enforcement community and have been foreseeable for many years, the police must be held accountable for reckless violations of proper police procedure during such situations. Otherwise, the public has no protection because these policies and procedures mean nothing if they are not enforceable under Georgia law.
In all high-speed pursuit cases, the seminal issue involved is whether the police properly weighed the need to immediately apprehend the suspect via a dangerous pursuit against the danger presented by the pursuit itself, either in the initial decision to initiate the pursuit and/or continue it once it began. It makes little or no sense to pursue a traffic violator or non-violent offender at high speeds in an urban area when the suspect being pursued is not inherently dangerous and the dangers to the public presented by the pursuit itself are substantially greater than is the danger presented by the suspect. Is it worth the life of an innocent person to capture a traffic offender? Is it worth the life of an innocent person to apprehend a non-violent offender (such as a suspected shoplifter) who can likely be apprehended at a later date without exposing the public to the dangers of serious injury or death?
There is a common myth that if the police do not pursue traffic violators and other offenders that they will be encouraging a disregard for the law and that more people will flee once the word gets out that the police are either refusing to engage in pursuits or are terminating the pursuits once the dangers presented by the pursuit become greater than the need to immediately apprehend the suspect. Substantial research in this area shows that for those jurisdictions that have enacted policies and procedures, which restrict high speed pursuits to situations involving violent felonies only, there is no corresponding increase either in the number of pursuits or in crime in general.7 This is a common myth, which has to be exposed by a plaintiff in any case that is presented to a jury.
Police Chase Cases: Still Viable and Still Important for the Georgia Plaintiff’s Bar
Notwithstanding the U.S. Supreme Court opinion in Scott v. Harris, police chase cases are still viable in Georgia under O.C.G.A. § 40-6-6(d)(2). Bringing these types of actions under Georgia law are key to holding law enforcement agencies accountable for violations of proper police procedure. If police departments are not held accountable for these violations, there is no protection to the public and essentially there is no meaningful policy or procedure. Plaintiff’s lawyers can and should continue to take these cases when innocent third parties are seriously injured or killed by a reckless disregard of proper police procedure. If the police pursue a non-violent offender at high speeds under situations where the risk of injury or death is not only foreseeable but also probable, the Plaintiff’s Bar should continue to insist that law enforcement officers be held accountable for the damages they cause when recklessly disregarding proper police procedure.
Counsel should not be deterred either by Scott v. Harris nor the apportionment statute found at O.C.G.A. § 51-12-33. Again, the seminal issue in police chase cases where an innocent bystander is injured or killed is whether the police should also be held accountable for their acts notwithstanding the admitted liability of the joint tortfeasor/fleeing suspect. In those cases where an innocent party suffers death or permanent serious injury because a police officer recklessly disregarded his training and his own policies and procedures, per Georgia law, the government should be held accountable. Enforced accountability through litigation will encourage compliance with policy and hopefully will help to reduce the number of these tragedies. If you still think otherwise after reading this article, take a look at the hundreds of innocent victims profiled on the website of PursuitSAFETY, a non-profit agency promoting safer alternatives to high-speed pursuits when non-violent offenses are included. Non-violent offenders can be caught later but if they escape, is that a worse outcome than death or serious injury to innocent third parties? We think not.
- Facts & Statistics, PursuitSAFETY (Feb. 19, 2014, 3:34pm) http://pursuitsafety.org/mediakit/statistics.html
- Facts & Statistics, PursuitSAFETY (Feb. 19, 2014, 3:34pm) http://pursuitsafety.org/mediakit/statistics.html
- McCobb v. Clayton County, 309 Ga. App. 217, 710 S.E. 2d 207 (2011).
- Under Georgia law, such innocent third parties may also include innocent passengers in the fleeing vehicle. Clayton County v. Austin-Powell, 321 Ga.App. 12, 740 S.E.2d 831 (2013).
- City of Winder v. McDougald, 276 Ga. 866, 583 S. E. 2d 879 (2003).
- O.C.G.A. § 36-92-2; Felder v. Strength, 311 Ga. App. 35, 714 S.E. 2d 723 (2011).
- Pursuit Myths, PursuitSAFETY (Feb. 19, 2014, 3:36pm) http://pursuitsafety.org/mediakit/myths.html