During the quest to apprehend criminals, at times innocent people are severely or fatally injured even when police officers act in accordance with departmental policy and training standards. This is no less true when officers pursue a felon, and they must constantly evaluate the risks of injury and damage to property versus the need to apprehend.
What if, during a pursuit, a police officer decides to engage in conduct meant to terminate the pursuit but unfortunately kills innocent motorists? Did the officer violate the constitutional rights of those killed? For example, does a police officer who uses tire-deflation devices during a police pursuit to stop a felon (arguably a good decision) violate the constitutional rights of other motorists injured as a result of the officer's actions?
A federal court of appeals addressed this very issue in Bublitz v. Cottey and held that the officer's decision to use stopping devices during a high-speed pursuit did not violate the constitutional rights of the driver of a minivan when his wife and child were killed after the fleeing felon ran over the apparatus and veered into the van.
The Facts
The facts in Bublitz v. Cottey are as follows. In the summer of 1997, Carmel (Ind.) police officers began pursuing Kevin James, who had just robbed a McDonald's in their town. The police followed James onto an interstate highway on the northwest side of Indianapolis, where police officers from Carmel, the Indiana State Police and Marion County Sheriff's Department continued to pursue James for approximately 20 miles at speeds exceeding 100 mph.
Because of the risks associated with the pursuit, police officers decided to attempt to stop James' vehicle. At one point during the pursuit, police deployed a tire-deflation device that James was able to avoid. Officers contemplated using the device a second time but for whatever reason rejected the idea.
In the meantime, an off-duty sergeant from the Marion County Sheriff's Department was at home monitoring the pursuit on his police radio. As the pursuit neared his residence, the sergeant contacted his supervisor and informed him of his availability to deploy another tire-deflation device.
With the approval of his supervisor, the sergeant drove his car onto the interstate highway, crossing three lanes to the median. When James was approximately 10 seconds away, the sergeant deployed the tire-deflation device. After James ran over the device, his car veered to the right and struck the left side and rear of the vehicle driven by Lester Bublitz. As a result of the collision, Bublitz's wife and son perished.
Bublitz filed a lawsuit in federal district court on his own behalf and that of his wife and son's estate. Bublitz alleged the police violated his and his family's federal and state constitutional rights when they attempted to stop the fleeing robber. However, the district court found the defendant police officers did nothing that deprived the Bublitz family members of their rights and granted summary judgment in favor of the officers. Bublitz appealed.
The only issues on appeal were whether Bublitz had a valid 42 U.S.C. 1983 claim under either the Fourth or Fourteenth Amendments to the United States Constitution. The 7th U.S. Circuit Court of Appeals held that he did not.
The 7th Circuit reiterated that to succeed under 1983, a plaintiff must demonstrate 1) the defendants (in this case the police officers) were acting under color of state law, and 2) they deprived him of a specific right secured by the laws or U.S. Constitution. If a plaintiff fails to establish one of these elements, his claim fails and judgment is entered in favor of the defendants. In this case, there was no dispute that the officers acted under color of state law. The 7th Circuit then went on to address the second element of Bublitz's 1983 claim: whether he stated a valid claim under the Fourth or Fourteenth Amendments.
The 4th Amendment
The Fourth Amendment prohibits an unreasonable seizure by government officials. Bublitz asserted the police officers "seized" him and his family that is, terminated their freedom of movement during their attempt to stop James. According to Bublitz, when the police used the stopping device to terminate James' freedom of movement, the police also terminated the freedom of the Bublitz's through the subsequent collision.
The 7th Circuit disagreed, quoting the U.S. Supreme Court: " 'A Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is governmental termination of freedom of movement through means intentionally applied.' "
According to the 7th Circuit, the Supreme Court has differentiated between "an accidental or tortious act which happens to be committed by a governmental official and an intentional detention that rises to the level of a constitutional violation." In fact, in another case, the 7th Circuit held that "an officer's action in accidentally running over a fleeing suspect did not constitute a seizure, as the officer's action was not the 'means intentionally applied to effect the stop, but was rather an unfortunate and regrettable accident.' "
In Bublitz v. Cottey, the 7th Circuit applied the same reasoning: "The police officers involved in the high-speed pursuit of James did not intentionally apply any means in an attempt to terminate the freedom of movement of the Bublitz family the unfortunate collision between James and the Bublitzes was not a means intended by police to stop the family, but rather an unintended consequence of an attempt to seize James." Because the family was not the intended object of the officers' attempts to seize James, the Fourth Amendment does not apply.
The 14th Amendment
Generally, the right at issue in a challenge to police conduct during a high-speed chase is the right to substantive due process under the Fourteenth Amendment. The Supreme Court has held that the Fourteenth Amendment's substantive due-process clause protects individuals against arbitrary action of government.
In Bublitz v. Cottey, the 7th Circuit stated that to rise to the level of a constitutional violation, the officers must have been deliberately indifferent their acts must have been "conscience-shocking." This requires substantial culpability on the part of police officers, and one that plaintiffs often fail to meet in demonstrating a Fourteenth Amendment violation.
In this case, the 7th Circuit found the sergeant's decision to deploy the tire-deflation device required "weighing a number of potential risks, including the risk posed by allowing the high-speed chase to continue on public streets. Given that a similar tire-deflation device had been used (unsuccessfully, but without incident) earlier in the chase, and that [the sergeant] had participated in another high-speed chase that had been successfully ended by the use of stop sticks, it is not reasonable to assume that [the sergeant] knew with any certainty that his use of the [stop sticks] in this instance would have resulted in a collision impacting innocent bystanders." Accordingly, the evidence does not support any assertion that the sergeant was aware of an excessive risk that using the stopping device would cause a collision.
Further, the 7th Circuit found that Bublitz failed to point to any evidence that the police intentionally misused the device or that they intended to cause a collision that would include vehicles occupied by innocent bystanders. As such, Bublitz failed to demonstrate the officers' actions deprived him or his family of their Fourteenth Amendment rights.
Conclusion
In the end, the 7th Circuit affirmed the district court's grant of summary judgment in favor of the police officers.
While it may prove difficult to succeed at a federal constitutional level, many experienced attorneys representing injured innocent bystanders bring suit at the state court level. And if recent jury verdicts are any indication, municipalities will continue to pay large sums of money defending police pursuits in state courts. Example: A recent Cook County (Ill.) jury awarded $17.5 million to the estate of a woman and her unborn child killed by a car that was fleeing police. A Chicago police sergeant had continued to pursue the vehicle, occupied by a wallet thief, despite orders to terminate the pursuit. The vehicle ran red lights in downtown Chicago at 40-70 mph., and ended up colliding with another vehicle, swerving onto the sidewalk and striking the innocent woman.
It goes without saying it's often very difficult for plaintiffs to assert successfully their constitutional rights were violated in a case where police officers participate in a pursuit and engage in conduct that arguably leads to innocent bystanders sustaining serious or fatal injuries. However, as the example above shows, this does not necessarily mean that innocent bystanders are without recourse in the judicial system.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
References
1. 327 F.3d 485 (7th Cir. 2003).
2. 327 F.3d at 486.
3. Id. at 488.
4. County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (quoting Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989)).
5. Bublitz, 327 at 489 (citing Campbell v. White, 916 F.2d 421, 422-23 (7th Cir. 1990)).
6. Id.
7. Ibid.
8. Lewis, 523 U.S. at 845.
9. Bublitz, 327 F.3d at 490 (citing Lewis, supra).
10. Id. at 491.