Victims Ask Police to Think Brake, Not Gas, in Chases

WASHINGTON —  Gabriel Torres of Pico Rivera was, all the lawyers agree, an innocent victim of a high-speed police pursuit on the Hollywood Freeway.

After working a night shift in the San Fernando Valley, he was heading home over the Cahuenga Pass in the early morning of May 15, 1994. Behind him in the darkness were two California Highway Patrol officers who had come upon a car weaving at 45 mph in the slow lane.

When they turned on their siren and flashing lights, the suspect’s vehicle roared away and soon reached 130 mph, stopping only when it slammed into the back of Torres’ Mustang near Highland Avenue.

Torres was knocked out, his jaw broken, the left side of his face shattered and one eye destroyed. The driver abandoned the stolen car, fled and was never found.

Now, five operations later, Torres has posed this thorny question to the federal courts: Can the police be held liable for a reckless act that almost ended his life and left him with $270,000 in unpaid medical bills?

In the state courts, the answer is no. A decade ago, the California Legislature made police departments “immune from liability” for injuries, deaths or damage to property resulting from police pursuits. Departments must adopt guidelines for officers on when to undertake high-speed chases, but the police cannot be sued even if they ignore the guidelines.

“The Legislature didn’t want the public treasury put at risk because of the actions of a fleeing criminal,” says Los Angeles Deputy City Atty. Gregory P. Orland. “There’s no question pursuits can be dangerous, and some innocent people have been killed or injured. But the remedy should be against the suspect, not the city.”

With California’s state and local police shielded from liability under state law, victims can turn only to the federal courts for relief. A U.S. Supreme Court decision, due by June, on a Sacramento case will determine whether Torres, whose lawsuit is pending in Los Angeles, and other victims can recover damages under federal law.

A ruling allowing police agencies to be sued for accidents caused by high-speed pursuits could also force departments to rethink policies about such chases.

A police car is the “most dangerous weapon in the police arsenal and the only one not regulated,” said Andrew C. Clarke, a Memphis, Tenn., lawyer for accident victims.

The cruisers are as deadly as firearms. In 1995, 383 people died as a result of police pursuits, according to reports compiled by the National Highway Traffic Safety Administration. That same year, the FBI reports, 380 people died in police shootings.

“You wouldn’t want a cop to shoot into a crowd to stop a fleeing jaywalker,” Clarke said. “Why do we want cops to engage in high-speed chases to pursue minor traffic violations?”

The pursuit case before the high court arose when the parents of 16-year-old Philip Lewis sued police for his death. Lewis and a friend, riding a motorcycle, had cruised by a police car on a residential street in Sacramento one May evening in 1990.

For reasons that remain unclear, an officer shouted for them to stop, and when the boys zoomed away, he sped after them. Going around a turn, Lewis fell off the motorcycle and was killed by the skidding police car.

Initially, a federal judge in Sacramento threw out the parents’ lawsuit, but it was revived two years ago by the U.S. 9th Circuit Court of Appeals, based in San Francisco.

Police who undertake a high-speed pursuit that shows a “reckless disregard” for public safety can be sued, wrote appeals court Judge Harry Pregerson of Woodland Hills. “This is not a case in which officers were pursuing dangerous felons. Lewis or Willard [his companion] would have posed [no] risk to public safety had they gotten away.”

Had this ruling stood, both the Lewis family and Torres could have taken their claims before a jury to try to prove that the police acted recklessly and to seek damages for their losses. Sacramento County appealed, however, and the Supreme Court agreed to review the case of Sacramento vs. Lewis, 96-1337.

Plaintiffs’ lawyers have used the theme of a 2-year-old study largely rejected by police agencies in their arguments to the Supreme Court. The American Civil Liberties Union Foundation of Southern California, after investigating the death and damage toll from police pursuits, recommended high-speed chases be used only to catch dangerous criminals, not to apprehend motorists for traffic violations.

“Public safety is threatened by unbridled pursuit policies,” its report concluded, pointing in particular to the Los Angeles Police Department and the sheriff’s departments in Los Angeles, Riverside and San Bernardino counties. The report lauded the Orange County Sheriff’s Department for barring deputies from undertaking pursuits over minor traffic offenses.

As a precedent for restraining the police, plaintiffs’ lawyers have also pointed to a 1985 Supreme Court ruling that strictly limited when officers can shoot at fleeing suspects and allowed damage suits against police for unjustified shootings.

The shooting issue arose when an officer came upon a teenager lurking in a Memphis backyard. When the youth tried to climb a fence to flee, the officer fatally shot him.

Invoking the “deadly force” rule, the court said police cannot shoot a fleeing suspect except when he presents a danger to them or to others. “It is not better that all felony suspects die than that they escape,” the court said in Tennessee vs. Garner.

Clarke said the same reasoning should be applied to high-speed pursuits. “If the police use of firearms is strictly regulated, why not pursuits too?”

But law enforcement officials throughout California strongly urged the Supreme Court to reject that argument. If the police can be sued for “reckless” chases, they said, police agencies will face an explosion of costly lawsuits, and taxpayers will foot the bill.

Moreover, they said, highways will be more, not less, dangerous, if drunks, speeders and felons think they can outrun the police.

In the Torres case, “the fleeing suspect caused the injuries, not the police,” said California Deputy Atty. Gen. Eric Sawyer. “He was an innocent party, but I don’t think the Supreme Court wants to turn civil rights law into a remedy for car accident cases.”

“For better or worse, police pursuits . . . have become a fixture of everyday police practice,” lawyers for Los Angeles and San Diego told the justices in a friend-of-the-court brief. In Los Angeles alone, police conducted 2,200 pursuits from 1994 to 1996.

Although many chases begin over traffic offenses, motorists who flee are likely to be criminals. In fact, those apprehended are charged with other serious crimes in about half the cases, the cities’ lawyers argued, citing a statewide study. But officers cannot know for sure why someone has fled until they stop the vehicle.

If the threat of liability hangs over the police, it “will essentially require an officer to abandon the pursuit” of a vehicle that speeds away and indeed will “encourage those attempting to flee lawful authority to do so in the most dangerous manner possible,” the lawyers told the court.

During oral argument before the Supreme Court on Dec. 9, the justices were less interested in debating police policy than in figuring out what constitutional right is at issue.

The court’s conservative leaders, Chief Justice William H. Rehnquist and Justice Antonin Scalia, are skeptical of a broad and open-ended interpretation of the rights protected by the Constitution.

In the Sacramento case, the lower-court judges invoked the 14th Amendment, which says state officials may not “deprive any person of life [or] liberty without due process of law.”

According to the 9th Circuit judges, a police officer who acts so recklessly as to endanger someone violates this provision.

Disagreeing, the lawyer for Sacramento County urged the justices to adopt a much higher standard, whereby police could be sued only if their actions are so outrageous as to “shock the conscience.”

Within a few moments, Scalia interrupted the argument. “What if I think the answer is, ‘None of the above?’ ” he asked.

Scalia and the chief justice made it clear they do not believe an officer can be guilty of “depriving a person of liberty” by accident. If a police officer deliberately runs over a person with his squad car, Rehnquist said, that would violate the 14th Amendment. But an accident would not, he added.

The justices also wondered why the case did not focus on the 4th Amendment and its ban on “unreasonable searches and seizures.” But for the plaintiffs, that route could prove a dead end too. In most pursuit cases, neither the fleeing suspect nor an innocent bystander is truly “seized” by the police. By the court’s definition, Lewis was not seized when the police car accidentally hit him, and Torres was not seized because the police were not trying to capture him.

The lawyer for the Lewis family, Paul J. Hedlund of Los Angeles, argued that the youth was killed because of an “incredibly reckless act” by the officer. “I can prevail before any jury with this case,” he told the court.

But if the justices’ comments are any indication, he may never get such a chance. At one point, Scalia pointed out that the young motorcyclist had fled the police. “I would be more sympathetic if he were a bystander,” he said.

Torres was an innocent bystander, but the high court’s decision may well block him from recovering a penny for his injuries. Now 26, he has an artificial eye and is approaching his sixth operation, this one to repair his nose.

“I just don’t understand why this happened. Why were they driving so fast? They could have done something else, maybe called in the helicopters. If you are driving that fast, someone is going to get hurt.”