Factors to consider in pursuit of a suspect

Recently, I have seen a rise in claims and lawsuits pertaining to law enforcement pursuits during which a third party is injured by a fleeing suspect. While law enforcement officers have the right to pursue suspects who are fleeing, they must still exercise ordinary care for the safety of others using the roadway. There are numerous factors to consider when determining if a law enforcement officer is exercising ordinary care during a pursuit.

An officer deciding whether to continue a pursuit should balance the need to apprehend criminals with the responsibility to protect and foster the safety of all persons in the operation of law enforcement vehicles under pursuit conditions. Factors to consider when deciding whether to continue a pursuit include but are not limited to whether the suspect is known and may be apprehended later, the offense (capital murder vs. traffic violation), weather conditions (sunny vs. rainy), road conditions (residential area vs. highway), lighting conditions (light vs. dark), and the speeds of the emergency vehicle and the fleeing vehicle.

What I consider to be the leading case on pursuits in Arkansas is City of Caddo Valley v. Joan George, 340 Ark. 203, 9 S.W.3d 481 (Ark. 2000). In City of Caddo Valley, a third party, Joan George, was injured during the pursuit of a fleeing suspect, Patrick Sherman. The pursuit of Sherman began when a Caddo Valley police officer heard a BOLO regarding a truck stolen from a gas station in Malvern. Officer Whittle saw the truck in Caddo Valley, at which time he turned on his unit’s lights and sirens and began pursuit. The pursuit reached speeds of 75 to 90 mph, and officers heard radio reports from Arkadelphia that police were in the process of setting up a roadblock. Officer Whittle was instructed twice to back off in hopes that Sherman would slow down. Officer Whittle eventually backed off, but Sherman failed to slow down and struck George right before the roadblock.

George filed a negligence action against the Caddo Valley police officers, seeking damages for injuries sustained when her vehicle was struck by Sherman. George alleged the Caddo Valley officers pursued the suspect at a high rate of speed when they knew, or should have known, the pursuit was likely to injure innocent victims; they failed to disengage from the pursuit when they knew, or should have known, Arkadelphia police were setting up a roadblock; and they failed to end the pursuit when they knew, or should have known, it was no longer prudent to chase Sherman under the conditions. The case went to trial, and a jury found that both the Caddo Valley officers and Sherman were negligent. The jury assigned 90 percent fault to the fleeing suspect and 10 percent fault to the Caddo Valley officers. Although the Caddo Valley officers were assigned only a small percentage of fault, the result was still a $50,000 policy limits award to George.

As in City of Caddo Valley v. George, if the danger created by the pursuit outweighs the necessity for immediate apprehension, you should not continue pursuit. If you know the suspect’s identity and know the suspect is wanted only for a traffic violation, or a nonviolent felony, it is best not to continue a dangerous, high-speed pursuit likely to put civilians at risk. Alternatively, if during the pursuit, the risk factors have increased, then you should re-evaluate whether to continue pursuit.

For example, if you are pursuing a fleeing suspect for a minor traffic violation for over 30 minutes through residential neighborhoods at speeds of 100 mph on a rainy day, it is likely you will have some percentage of fault should the fleeing suspect cause a collision with a third party. A jury will likely find it was not reasonable to continue a dangerous pursuit for a minor traffic violation. However, if you are pursuing a suspect who is fleeing from the scene of a murder, and you witness the driver of the vehicle with a gun, it is more reasonable to continue pursuit under those facts.

Finally, if you are involved in a pursuit and the fleeing suspect causes a collision with a third party, it is best to create extensive documentation. Document all information about the suspect and pursuit, including but not limited to who the suspect is, what crime was committed, why you felt it was important to pursue the suspect, your thoughts during pursuit, your reasons for continuing pursuit, and any information regarding road conditions, weather conditions, lighting conditions, etc. Create a report that recounts information about as many of the above-mentioned factors as possible. Although you may not think the third party will make a claim against you, this scenario happens months or even years after the pursuit. Often, there is no insurance coverage provided on behalf of a fleeing suspect, as many insurance policies have exclusions if an illegal act is being committed, such as fleeing from law enforcement. Since there is no money to recover from the fleeing suspect, a plaintiff’s attorney will next come to the county, and ultimately, to you as the driver of the vehicle, seeking money on behalf of their injured client. If you have continued a pursuit in a negligent way that endangered the public, you have a risk of liability. If you become a defendant in a lawsuit, it is vital to have documentation that notes information about the suspect, the pursuit, and your state of mind during the pursuit, as you may end up at a trial like the officers involved in the City of Caddo Valley v. George lawsuit.