Amicus Curiae Brief — Countyof Sacramento v. Lewis

Q | FILED

No. 96-1387 ~ /

1997

IN THE

Supreme Court of the United

OCTOBER TERM, 1997

COUNTY OF SACRAMENTO, SACRAMENTO COUNTY

SHERIFF’S DEPARTMENT, AND JAMES EVERETT SMITH,

- Petitioners,

TERI LEWIS AND THOMAS LEwis, Personal

Representatives of the Estate of PHILIP LEWIS,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

NATIONAL ASSOCIATION OF COUNTIES,

U.S. CONFERENCE OF MAYORS, NATIONAL

LEAGUE OF CITIES, NATIONAL GOVERNORS’

ASSOCIATION, COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, AND INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

CHARLES ROTHFELD RICHARD RUDA *

MAYER, BROWN & PLATT Chief Counsel

2000 Pennsylvania Ave.,N.W. STATE AND LOCAL LEGAL

Washington, D.C. 20006 CENTER

(202) 778-0616 444 North Capitol St., N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

Wilson - Eres Printing Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001

ny?

QUESTION PRESENTED

Amici will address the following question:

Whether a police pursuit that results in unintended

injury is actionable as a violation of substantive due

process.

TABLE OF CONTENTS

Page

GUESTION PRESENTED ......................-..-<-0...-...-.-.-.-... i

iv

INTEREST OF THE AMICI CURIAE .............0........... 1

EEE ES LE 2

SUMMARY OF ARGUMENT ..............................0....... 6

Nee ae 7

A POLICE PURSUIT RESULTING IN UN-

INTENDED INJURY IS NOT ACTIONABLE

UNDER THE DUE PROCESS CLAUSE |... 7

A. The Fourth Amendment Defines The Process

That Is Due To An Individual During A Police

Pursuit ........... EE SS ee 8

B. Unintended Or. Accidental Injuries Are Not Ac-

tionable As A Violation Of Substantive Due

eR a sie 13

C. The Regulation Of Police Pursuits Is Appropri-

ately Left To The States And Local Govern-

Z

:

$ 8

(iii)

iv Vv

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

Cases Page Page

Albright v. Oliver, 510 U.S. 266 (1994) ........ 6, 9, 18, 14 Parratt v. Taylor, 451 U.S. 527 (1981)... 15

Baum v. Ohio State Highway Patrol, 650 N.E.2d | Peak V. Ratliff, 408 S.E.2d 300 (W. Va. 1991)........ 28

Oe a 28 Roach v. City of Fredericktown, 882 F.2d 294

Bittner v. City of St. Louis Police Bd. of Comm'rs, (Sth Cir. 1969) nnn 10

925 S.W.2d 495 (Mo. Ct. App. 1996) .. _......... 28 Rochin v. California, 342 U.S. 165 (1952) _...... 7, 20, 21

Breithaupt V. Abram, 352 U.S. 482 (1957) . ....... 20,21 Soldal v. Cook County, 506 U.S. 56 (1992)... 9, 10, 11

Brower Vv. County of Inyo, 489 U.S. 593 (1989) ....passim Tennessee v. Garner, 471 U.S. 1 (1985) ............... 19, 24

California Vv. Hodari, 499 U.S. 621 (1991) ............ 12 Terry V. Ohio, 392 U.S. 1 (1968) 23

Cavanaugh Vv. Andrade, 550 N.W.2d 103 (Wis. Tetro Vv. Town of Stratford, 458 A.2d 5 (Conn.

oT Sea ty ale Ki» Se ec 28 SD rari tinicedendicanscternpepeenimeestainapinemumenmnmntercenyrnensecs 28

City of Lancaster v. Chambers, 883 S.W.2d 650 Thomas Vv. City of Richmond, 892 P.2d 1185 (Cal.

OSS Resi a te 28 ee 5, 28

City of Pinellas Park v. Brown, 604 So.2d 1222 Thompson V. Payne, 453 S.E.2d 803 (Ga. Ct. App

yi GS rae ES 28 ng a ae ee 28

Cline v. Rabson, 856 P.2d 1 (Colo. Ct. App. United States v. James Daniel Good Real Property,

YOO) 28 anircmhemiaatinn

Colby Vv. Boyden, 400 S.E.2d 184 (Va. 1991) ......... 28 . ’ cove

Collins v. City of Harker Heights, 503 U.S. 115 United States v. Mendenhall, 446 U.S. 544 (1980). 11, 12

EERIE RE SES TES EF passim United States v. Salerno, 481 U.S. 739 (1987)... 20-21

Currie V. Lao, 592 N.E.2d 977 (Ill. 1992)... 28, 29 Vance V. Bradley, 440 U.S. 93 (1979) 00. 15

Daniels v. Williams, 474 U.S. 327 (1986) passim Washington Vv. Davis, 426 U.S. 229 (1976)... 15

DeShaney V. Winnebago County Dep’t of Social Washington v. Glucksberg, 117 S.Ct. 2258

Servs., 489 U.S. 189 (1989) 16, 17, 19 S| 21

DeWald V. State, 719 P.2d 643 (Wyo. 1986) 22 Whitley Vv. Albers, 475 U.S. 312 (1986)... 21, 22

Estate of Aten V. City of Tucson, 817 P.2d 951 Zapp V. Kakuris, 847 P.2d 150 (Colo. Ct. App.

GREE a RIO 28 ID atin eseeseeeeeneenreeremesessertenecenieeneenemenrs 28

Estelle v. Gamble, 429 U.S. 97 (1976)... 21, 21-22 Statutes

Fiser Vv. of Ann Arbor, 339 N.W.2d 413

(Mich. cae “ IS YF Lee 28 en 4

Fiedler Vv. Stonack, 661 A.2d 231 (NJ. 1995)... ss -28 Wis. Stat. § $46.08 (6) 27

Graham v. Connor, 490 U.S. 386 (1989) _........6, 9, 10, 22 Miscellaneous

Haynes v. Hamilton County, 883 S.W.2d 606

i I 28 Geoffrey P. Alpert & Roger G. Dunham, PoLice

In re Winship, 397 U.S. 358 (1970) 0. 10 Pursuir Drivinc (1990) 25, 26

Lowrimore Vv. Dimmit, 797 P.2d 1027 (Ore. 1990). 28 Geoffrey P. Alpert & Roger G. Dunham, Policing

Mason V. Bitton, 534 P.2d 1360 (Wash. 1975)... 28 Hot Pursuits: The Discovery of Aleatory Ele-

Morais v. Yee, 648 A.2d 405 (Vt. 1994) 00. 28 ments, 80 J. Crim. L. & CRIMINOLOGY 521

Moran V. Burbine, 475 U.S. 412 (1986) 0... 21 ae a a ee ee eee 25

Oberkramer V. City of Ellisville, 706 S.W.2d 440

ON TD ei ace 28

vi

TABLE OF AUTHORITIES—Continued

Page

Robert Crew et al., Probabilities and Odds in Hot

Pursuit: A Benefit-Cost Analysis, 23 J. CRIM.

- FF Ff eee eee 25

Richard H. Fallon, Jr., Some Confusions About

Due Process, Judicial Review, and Constitutional

Remedies, 938 CoLuM. L. Rev. 309 (1993) _...... “ 29

Edmund F. Fennessy et al., U.S. Dep’t of Transp.,

A STupY OF THE PRoBLEM or Hot Pursuit By

THE POLICE (1970) ...........---.---------0ceen-ncneneeee-ovs .23-24, 24

NATIONAL POLICE PURSUIT POLICY ACT OF 1995,

S. 923, 104th Cong. (1995) errr 27

Hugh Nugent et al., National Institute of Justice,

U.S. Dep’t of Justice, RESTRICTIVE POLICIES FOR

HicH-Speep Poiice Pursuit (July 1983)... 24

Richard G. Zevitz, Police Civil Liability and the

Law of High Speed Pursuit, 70 Marq. L. REv.

DF ES 26-27, 27

IN THE

Supreine Court of the United States

OCTOBER TERM, 1997

No. 96-1337

COUNTY OF SACRAMENTO, SACRAMENTO COUNTY

SHERIFF’S DEPARTMENT, AND JAMES EVERETT SMITH,

. Petitioners,

TERI LEWIS AND THOMAS LEwiIs, Personal

Representatives of the Estate of PHILip Lewis,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

NATIONAL ASSOCIATION OF COUNTIES,

U.S. CONFERENCE OF MAYORS, NATIONAL

LEAGUE OF CITIES, NATIONAL GOVERNORS’

ASSOCIATION, COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, AND INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include

state, county, and municipal governments and officials

throughout the United States. They have a compel-

ling interest in the issues presented in this case:

whether and by what standard a state law enforce-

ment official who engages in a vehicular pursuit

resulting in injury to the fleeing suspect may be held

liable under the Fourteenth Amendment for a viola-

2

tion of substantive due process where the injury to

the suspect was accidental or unintentional.

This case concerns an essential and longstanding

tool for enforcing and maintaining respect for the

rule of law. In today’s highly mobile society, vehicu-

lar pursuits are vital to law enforcement’s ability to

apprehend suspects, conduct investigatory stops, and

enforce ordinary traffic laws. The Court’s decision

regarding the extent to which such pursuits are sub-

ject to constitutional scrutiny under the Fourteenth

Amendment will directly affect amici and their mem-

bers: this Court’s decision will have an impact not

only on the everyday decisions of law enforcement

officials across the country in conducting vehicular

pursuits, but also on the ability of state and local

governments to regulate police practices. Moreover,

subjecting vehicular pursuits to searching constitu-

tional review will add substantially to the expense of

maintaining a police force as litigation and liability

increase. Amici therefore submit this brief to assist

the Court in the resolution of this case.’

STATEMENT

1. On May 22, 1990, at approximately 8:30 p.m.,

Petitioner Sacramento County Sheriff’s Deputy James

E. Smith, along with Sacramento Police Officer Mur-

ray Stapp, responded to a call about a fight in prog-

ress. Pet. App. 46. After completing the call, the

two officers returned to their marked patrol cars.

Id. at 2-3. Officer Stapp heard a motorcycle engine

revving and then saw the motorcycle approach at a

high rate of speed. Jd. at 46. Brian Willard was

driving the motorcycle, while Philip Lewis was a

1 The parties’ letters of consent pursuant to Rule 37.3 of

the Rules of this Court have been filed with the Clerk of the

Court.

3

passenger. Jbid. Both boys were teenagers. Neither

wore a helmet or was involved in the fight to which

the officers had responded. Jd. at 3. Attempting to

stop the motorcycle, “Officer Stapp yelled to the motor-

cyclists to pull over,” id. at 46-47, and positioned his

vehicle closer to Deputy Smith’s, id. at 3. But Willard

veered the motorcycle in between the two police cars

and then “accelerated past the police officers.” Jd.

at 47.

Deputy Smith and Officer Stapp pursued the motor-

cycle. Deputy * 1ith attempted to contact his head-

quarters in accordance with Department policy, but

failed to make contact because his radio was on the

wrong channel. Pet. App. 47. The pursuit involved

three 90-degree left turns and passed through four

stop lights. Jd. at 3. The entire pursuit lasted 75

seconds and covered 1.3 miles. /bid. “The average

speed of the vehicles was calculated to be 60 miles

per hour, with high speeds of up to 100 miles per

hour.” Ibid. At times during the pursuit, Deputy

Smith followed behind the motorcycles at a distance

of approximately 100 to 150 feet. Id. at 4.

The pursuit ended at or near a crest in the road.

After passing over the crest, the motorcyclists at-

tempted to make a hard left turn onto an intersecting

street. The motorcycle skidded and came to a halt

on the :vad, failing to make the turn. Seeing the

motorcycle stopped in the street, Deputy Smith

“slammed on his brakes but was unable to stop his

vehicle in time.” Pet. App. 4. His patrol car skidded

147 feet and then struck Lewis. Ibid. Lewis sus-

tained massive internal injuries and was pronounced

dead on the scene. [bid.

2. As the representatives of the estate of Philip

Lewis, Respondents Teri and Thomas Lewis, Philip’s

4

parents, brought suit in Sacramento County Superior

Court against petitioners Sacramento County, the

Sacramento County Sheriff’s Department, and Deputy

Smith. In their complaint, respondents raised a fed-

eral claim under 42 U.S.C. § 1983, alleging that

Deputy Smith acted recklessly and thus deprived

their son of due process in violation of the Fourteenth

Amendment, and that the County and its Sheriff’s

Department were liable for inadequately training

their officers and for having a policy that was de-

liberately indifferent to their son’s constitutional

rights. Pet. App. 48-49. Respondents also asserted

a claim for negligence under California law. /d.

at 49.

Petitioners removed the case to federal district

court, which granted summary judgment on the

§ 1983 claims in favor of the petitioners. Without

deciding whether Deputy Smith’s conduct violated

Lewis’s right to substantive due process, the district

court concluded that Deputy Smith was entitled to

qualified immunity because it was not clearly estab-

lished that Lewis had a substantive due process right

in the context of a high-speed police pursuit. Pet.

App. 52-53. In addition, the district court concluded

that there was no evidence that Sacramento County

and its Sheriff’s Department inadequately trained

Deputy Smith or had a pursuit policy that was de-

liberately indifferent to Lewis’s constitutional rights:

Deputy Smith received training in high speed driving

and the Sheriff’s Department’s pursuit policy met or

exceeded California state standards. Id. at 55-56.

In addition, the district court granted summary

judgment in: favor of Deputy Smith with respect to

respondents’ state tort claim, concluding that officers

are entitled to immunity under California Vehicle

5

Code § 17004. Jd. at 56-57. But the court dismissed

without prejudice respondents’ tort claims against

Sacramento County and its Sheriff’s Department,

declining to decide whether these municipal defend-

ants also had immunity under California law. Jd. at

58-59.

3. On appeal, the Ninth Circuit reversed the dis-

trict court’s grant of summary judgment to Deputy

Smith, but affirmed the grant of summary judgment

to Sacramento County and its Sheriff’s Department.

Pet. App. 2. Addressing the federal claim against

Deputy Smith, the court of appeals ruled that a

genuine issue of material fact existed as to whether

Deputy Smith had violated Lewis’s right to substan-

tive due process—a right, the court of appeals held,

that is violated if a high-speed police pursuit shows

“deliberate indifference to, or reckless disregard for,

a person’s right to ufe and personal security.” 7d.

at 21. In addition, the court of appeals ruled that

Deputy Smith was not entitled to qualified immunity

because the law was clearly established that a police

officer may be held liable under § 1983 if his conduct

was “sufficiently egregious.” Jd. at 35. The court of

appeals relied upon two of this Court’s decisions

regarding the use of excessive force under the Fourth

*The California Supreme Court subsequently held that

municipalities are not entitled to immunity from such suits

under the California Vehicle Code. See Thomas v. City of

Richmond, 892 P.2d 1185, 1187 (Cal. 1995).

®* As to the federal claims against Sacramento County and

its Sheriff’s Department, the court of appeals concluded that

respondents failed to raise a genuine issue of material fact

to support their contention that the County’s training and

pursuit policies were deliberately indifferent to Lewis’s rights.

Pet. App. 42-43.

6

Amendment, three decisions from other circuits in-

volving high-speed police pursuits (none of which

found a violation of substantive due process), and

two cases from its own circuit involving substantive

due process claims outside the context of police pur-

suits. Jd. at 27-37.

SUMMARY OF ARGUMENT

A. The court of appeals was incorrect in conclud-

ing that respondents have presented a cognizable

substantive due process claim. As an “explicit textual

source of constitutional protection” that addresses

the conduct of law enforcement officials in conducting ~

“seizures” of persons, it is the Fourth Amendment

that defines the process due an individual who is the

subject of a police pursuit. Graham v. Connor, 490

U.S. 386, 395 (1989). And “[w]here a particular

amendment ‘provides an explicit textual source of

constitutional protection’ against a particular sort

of government behavior, ‘that Amendment, not the

more generalized notion of ‘substantive due process,’

must be the guide to analyzing these claims.’” Al-

bright v. Oliver, 510 U.S. 266, 273 (1994) (plurality

opinion) (citation omitted). Appropriately analyzed

under the Fourth Amendment, there was no consti-

tutional violation in this case.

B. If due process analysis is not wholly displaced

in this case by the Fourth Amendment, the court of

appeals applied an incorrect substantive due process

standard in holding that recklessness may give rise

to a constitutional violation. In fact, the Due Process

Clause is concerned with “deliberate decisions of gov-

ernment officials to deny a person life, liberty, or

property.” Daniels v. Williams, 474 U.S. 327, 331

(1986) (emphasis in original). This conclusion fol-

7

lows from the language, history, and purpose of the

Clause, which was designed to prevent governmental

power from being used for purposes of oppression.

The Ninth Circuit’s recklessness standard is incon-

sistent with this understanding. Moreover, substan-

tive due process comes into play only when the chal-

lenged governmental action was so brutal or offensive

that it “shocks the conscience.” Rochin v. California,

342 U.S. 165, 172 (1952). Reckless conduct does not

meet that exacting standard.

C. Addressing the consequences of reckless or

negligent police conduct is appropriately left to state

tort law. In setting the limits on liability in this

area, a host of considerations go into balancing the

interests of injured parties on the one hand and the

needs of effective law enforcement on the other. Tort

law is well-adapted to striking that balance. And

many States provide for liability on the part of the

officer or his employer when such pursuits result in

injury. Moreover, most States and localities have

adopted policies regulating high-speed vehicular pur-

suits. In these circumstances, the relevant choices are

best made “by locally elected representatives, and not

by federal judges interpreting the basic charter of

Government for the entire country.” Collins v. City

of Harker Heights, 503 U.S. 115, 129 (1992).

ARGUMENT

A POLICE PURSUIT RESULTING IN UNINTENDED

INJURY IS NOT ACTIONABLE UNDER THE DUE

PROCESS CLAUSE

The court of appeals’ holding marks a dramatic

departure from the principles laid down by this Court.

The decision below substitutes a vague and novel

substantive due process standard for the Fourth

Amendment inquiry that ordinarily applies to govern

police behavior. At the same time, the Ninth Circuit

superimposed a “recklessness” liability standard more

appropriate for a tort case than for a suit invoking

the “large concerns” of substantive due process.

Daniels vy. Williams, 474 U.S. 327, 382 (1986). And

by declaring reckless conduct a due process violation,

the court of appeals greatly broadened—and, in the

process, diminished—a constitutional guarantee de-

signed to serve as a bulwark against governmental

oppression. That decision accordingly should not

stand.

A. The Fourth Amendment Defines The Process That Is

Due To An Individual During A Police Pursuit

As a threshold matter, the court of appeals was

wrong in concluding that respondents have presented

a cognizable substantive due process claim under the

Fourteenth Amendment. See Pet. App. 10. The

Fourth Amendment, which protects “[t]he right of

the people to be secure in their persons * * * against

unreasonable searches and seizures,” defines the full

measure of constitutional protection from excessive

force that is accorded tu an individual who is being

pursued by law enforcement officials. This means

that in the context of a police pursuit, individuals

have a constitutional right to “be secure in their

persons” only to the extent they are “seized” in an

unreasonable manner. The court of appeals went

astray in disregarding that principle.

1. As “an explicit textual source of constitutional

protection” that addresses the extent to which law

enforcement officials, in attempting to make an arrest

or investigatory stop, may invade “the right of the

people to be secure in their persons,” the Fourth

9

Amendment defines the process that is due to an in-

dividual subject to a police pursuit. Graham v. Con-

nor, 490 U.S. 386, 395 (1989). In Graham, the Court

accordingly held that “all claims that law enforce-

ment officers have used excessive force—deadly or

not—in the course of an arrest, investigatory stop,

or other ‘seizure’ of a free citizen should be analyzed

under the Fourth Amendment and its ‘reasonable-

ness’ standard, rather than under a ‘substantive due

process’ approach.” Jbid. (emphasis in original).

This constitutional principle is based on the recog-

nition that, where questions of criminal procedure

are involved, “the specific guarantees of the various

provisions of the Bill of Rights embodied in the first

10 Amendments to the Constitution” define all the

process that is due to the individual. Albright v.

Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)

Accordingly, “[w]here a particular amendment ‘pro-

vides an explicit textual source of constitutional pro-

tection’ against a particular sort of government be-

havior, ‘that Amendment, not the more generalized

notion of “substantive due process,” must be the guide

for analyzing these claims.’” Jbid. (quoting Graham,

490 U.S. at 395).*

*To be sure, “[c]ertain wrongs affect more than a single

right and, accordingly, can implicate more than one of the

Constitution’s commands.” Soldal v. Cook County, 506 U.S.

56, 70 (1992) (unauthorized eviction implicated Fourth

Amendment search and seizure clause and Fourteenth Amend-

ment due process clause) ; see United States v. James Daniel

Good Real Property, 510 U.S. 48, 50 (1993) (seizure of

property for civil forfeiture implicated Fourth Amendment

search and seizure clause and Fifth Amendment procedural

due process clause). However, these cases have not disturbed

the principle that claims involving the alleged use of exces-

sive force by police officers should be analyzed solely under

10

In this case, the particular government behavior

at issue is the vehicular pursuit of fleeing suspects

conducted by law enforcement officials in the course

of an attempted investigatory stop. The Fourth

Amendment plainly addresses the extent to which

this sort of government behavior is subject to consti-

tutional scrutiny, and it accordingly is that provision

that strikes the appropriate balance between the in-

terest of the individual in personal security and the

interest of society in deterring criminal behavior.

See Roach v. City of Fredericktown, 882 F.2d 294,

297 (8th Cir. 1989). Indeed, the peculiarity of the

court of appeals’ approach becomes clear when one

considers what would have happened had Deputy

Smith succeeded in seizing Lewis. Imagine that

Deputy Smith set out to stop Lewis by running him

off the road—an outcome that plainly would have

constituted a seizure within the meaning of the Fourth

Amendment. See Brower v. County of Inyo, 489 U.S.

593, 598-599 (1989). In that event, both the colli-

sion and foregoing pursuit (which would have oc-

curred in “the course of the arrest [or] investigatory

stop”) would have been scrutinized under the Fourth

Amendment. Graham, 490 U.S. at 395. Yet it is very

odd to suggest that an otherwise identical portion of

the Fourth Amendment rather than the Fourteenth Amend-

ment’s substantive due process test because “both provisions

target[] the same sort of governmental conduct” and, as

the “more ‘explicit textual source of constitutional protec-

tion,’” the Fourth Amendment defines all the process that is

due. Soldal, 506 U.S. at 70. Of course, the Fourteenth Amend-

ment’s guarantee of procedural due process may require addi-

tional criminal procedures that are not explicitly mentioned

in the Bill of Rights but that are considered essential to

fundamental fairness. See, e.g., Jn re Winship, 397 U.S. 358,

364 (1970) (proof beyond a reasonable doubt).

11

this course of police conduct is reviewed under a dif-

ferent constitutional provision because the police ulti-

mately did not complete the seizure.

Moreover, the Fourth Amendment and the Due

Process Clause of the Fourteenth Amendment (at

least insofar as respondents seek to apply it in this

setting) share the same purpose: preventing affirma-

tive misuses of governmental power. “The purpose

of the Fourth Amendment is * * * ‘to prevent arbi-

trary and oppressive interference by enforcement

officials with the privacy and personal security of

individuals.’” United States vy. Mendenhall, 446 U.S.

544, 553-554 (1980) (opinion of Stewart, J.) (cita-

tion omitted). Likewise, the Due Process Clause

“serves to prevent governmental power from being

‘used for purposes of oppression.’” Daniels, 474 U.S.

at 331 (citation omitted). It therefore is manifest

that “both provisions target[] the same sort of gov-

ernmental conduct” and that the Fourth Amendment,

as the “more ‘explicit source of constitutional protec-

tion,’” should control. Soldal, 506 U.S. at 70 (cita-

tion omitted) .*

2. Viewed as a Fourth Amendment matter, it is

plain that Deputy Smith did not violate the Constitu-

tion because there was no seizure. The Fourth

Amendment targets intentional acts of detention or

control by law enforcement officials, “not the acci-

dental effects of otherwise lawful government con-

duct.” Brower, 489 U.S. at 596. In Brower, for

example, the Court considered a Fourth Amendment

*Of course, the Due Process Clause may provide an indi-

vidual with protection from physical abuse that is committed

by a state official under the color of state law, but outside

the context of an investigatory stop or arrest. See, e.¢.,

United States v. Lanier, 117 S.Ct. 1219 (1997).

12

claim by the estate of an individual who “was killed

when the stolen car that he had been driving at high

speeds for approximately 20 miles in an effort

elude pursuing police crashed into a police road-

block.” Id. at 594. The Court held that the claim was

cognizable under the Fourth Amendment because the

means by which the individual was stopped (that is,

the roadblock) was intentionally applied by the law

enforcement officials to block the individual’s move-

ment. Jd. at 599. In reaching that decision, this Court

explained that a Fourth Amendment violation re-

quires a “seizure” of the person, which means an in-

tentional restraint of the individual’s movement. /d.

at 596.

But where the restraint of the person results by

accident, as was the case here, there is no seizure of

the person. See Pet. App. 10 n.3 (“It is undisputed

that Smith did not intend to hit Lewis with his patrol

ear. There was thus no Fourth Amendment viola-

tion.”); see also California v. Hodari, 499 U.S. 621,

628 (1991) (no seizure occurs during pursuit where

the officer’s “ ‘show of authority’ did not produce his

stop”) (quoting Brower, 489 U.S. at 597). As the

Court explained in Brower, there is no seizure where

the fleeing suspect is stopped by accidental or unin-

tended means; a seizure occurs “only when there is

a governmental termination of freedom of movement

through means intentionally applied.” Brower, 489

U.S. at 597 (emphasis in original). And where a

police pursuit does not involve a seizure, the conduct

necessarily does not violate the Constitution: “[oJjnly

when such restraint is imposed is there any founda-

tion whatever for invoking constitutional safeguards.”

Mendenhall, 446 U.S. at 553 (opinion of Stewart, J.).

See Hodari, 499 U.S. at 625-626.

13

13

The court of appeals’ recognition of a substantive

due process claim for an unintended restraint of an

individual’s liberty thus upsets the balance struck by

the Fourth Amendment in defining the rights of per-

sons to be secure from law enforcement investigations.

That court’s use of substantive due process impermis-

sibly “impose[{s] additional requirements upon * * *

the States’ criminal processes [that were] already

addressed (and left without such requirements) by

the Bill of Rights.” Albright, 510 U.S. at 276 (Scalia,

J., concurring). It subjects to constitutional scrutiny

conduct by state law enforcement officials that the

Fourth Amendment already addressed and left out-

side its purview: the “unintended consequences of

government action” related to a police pursuit.

Brower, 489 U.S. at 596.

B. Unintended Or Accidental Injuries Are Not Action-

able As A Violation Of Substantive Due Process

For the foregoing reasons, the Fourth Amendment

provides the exclusive source of constitutional protec-

tion for individuals injured in a police pursuit. If the

Court rejects that conclusion, however, amici submit

that the court of appeals’ decision is in any event

erroneous because it adopts an incorrect standard of

proof for violations of substantive due process: the

Due Process Clause is concerned with “deliberate

decisions of government officials to deprive a person

of life, liberty, or property.” Daniels, 474 U.S. at

331 (emphasis in original). As a consequence, where

there has been no purposeful decision to work such

a deprivation, the Due Process Clause simply is not

implicated. In addition, a violation of substantive due

process requires more than a “reckless disregard” for

the safety of others; there must be a determination

14

that the conduct in question was “shocking to the

conscience” or “arbitrary” in the constitutional sense.

The court of appeals erred in adopting a different

standard.

1. The Ninth Circuit held that “the appropriate

degree of fault to be applied to high-speed police

pursuits is deliberate indifference to, or reckless dis-

regard for, a person’s right to life and personal

security.” Pet. App. 21. Under the court of appeals’

standard, law enforcement officials may be held liable

for a violation of substantive due process for “insti-

tuting and then continuing” a vehicular pursuit of a

suspect if it is determined that “a reasonable officer

would have known that to do so was in reckless dis-

regard” for the suspect’s or public safety. Jd. at 23.

This approach would recognize a substantive due proc-

ess violation even where the injury was merely acci-

dental. Such a radical expansion of substantive due

process has no support in the text or history of the

Due Process Clause, or in this Court’s precedents

interpreting the provision.

“As a general matter, the Court has always been

reluctant to expand the concept of substantive due

process because guideposts for responsible decision-

making in this unchartered area are scarce and open-

ended.” Collins, 503 U.S. at 115. Instead, the Court

has been faithful to the central purpose of the provi-

sion: “[t]he Due Process Clause of the Fourteenth

Amendment was intended to prevent government from

abusing [its] power, or employing it as an instru-

ment of oppression.” Jbid. (citations and internal

quotation marks omitted). See Albright, 510 U.S. at

271-272 (plurality opinion) (noting limited circum-

stances in which the Court has applied protections of

substantive due process). Although this Court has

a — wee ee

15

not had “occasion to consider whether something less

than intentional conduct, such as recklessness or

‘gross negligence,’ is enough to trigger the protections

of the Due Process Clause” (Daniels, 474 U.S. at 334

n.3), the principles established by this Court support

the requirement of intentional conduct to prove viola-

tions of due process.

The Due Process Clause of the Fourteenth Amend-

ment provides that no State may “deprive any person

of life, liberty, or property, without due process of

law.” The most natural reading of this language

would limit it to deliberate actions by state officials

calculated to take life, liberty, or property away from

an individual. See Parratt v. Taylor, 451 U.S. 527,

548 (1981) (Powell, J., concurring in result) (“A

‘deprivation’ connotes an intentional act denying

something to someone, or, at the very least, a delib-

erate decision not to act to prevent a loss.”). The

constitutional text thus suggests that an unintended

loss of life, liberty, or property simply is not cogniza-

ble under the Due Process Clause.*

*Such a requirement of intent rests on the understanding

that the constitutional safeguards against governmental abuse

of power are generally not designed to address “the accidental

effects of otherwise lawful government conduct.” Brower,

489 U.S. at 596; see also Washington v. Davis, 426 U.S. 229,

240 (1976) (denial of equal protection under the Fourteenth

Amendment requires proof of discriminatory intent). More-

over, the Due Process Clause of the Fifth Amendment im-

poses on the federal government restraints equivalent to those

imposed upon the States by the Equal Protection Clause. See,

e.g., Vance v. Bradley, 440 U.S. 93, 94-95 n.1 (1979). The

Ninth Circuit’s interpretation of due process thus would

require that the single word “deprive” in the Fifth Amend-

ment be interpreted to reach only intentional acts on some

occasions—when the equal protection component of the

16

This conclusion is confirmed by the history and

purpose of the Clause. As the Court recognized in

Daniels, “{h}istorically, this guarantee of due process

has been applied to deliberate decisions of government

officials to deprive a person of life, liberty, or prop-

erty.” 474 U.S. at 331 (collecting cases) (emphasis

in original). The Court thus has recognized

the traditional and common-sense notion that the

Due Process Clause, like its forebear in the

Magna Carta, * * * “was intended to secure

the individual from the arbitrary exercise of the

powers of government[.]” * * * By requiring

the government to follow appropriate procedures

when its agents decide to “deprive any person of

life, liberty, or property,” the Due Process

Clause promotes fairness in such decisions. And

by barring certain actions regardless of the fair-

ness of the procedures used to implement them,

* * * it serves to prevent governmental power

from being “used for purposes of oppression[.]”

Id. at 331 (citations omitted). This means that,

“ijn the substantive due process analysis, it is the

State’s affirmative act of restraining the individual’s

freedom to act on his own behalf—through incarcera-

tion, institutionalization, or other similar restraint of

personal liberty—which is the ‘deprivation of liberty’

triggering the protections of the Due Process

Clause * * *.” DeShaney v. Winnebago County Dep’t

of Social Servs., 489 U.S. 189, 200 (1989) (emphasis

added).

The Court’s decisions have been consistent in apply-

ing this understanding, repeatedly rejecting attempts

amendment is invoked—but to reach reckless acts when the

Due Process Clause is at issue.

17

to transform the Due Process Clause into a residuary

provision protecting individuals from unsafe condi-

tions created or left uncorrected by the State. In

Daniels, for example, the Court made clear that “the

Due Process Clause is simply not implicated by a neg-

ligent act of an official causing unintended loss of or

injury to life, liberty, or property.” 474 U.S. at 328

(emphasis in original). Similarly, the Court held in

DeShaney that the Due Process Clause is not impli-

cated when the State fails to provide care or adequate

protective services to an individual who is not within

its custody. See 489 U.S. at 194. While recognizing

the natural impulse “to find a way for [the injured

parties] to receive adequate compensation for the

grievous harm inflicted upon them,” the Court con-

cluded that, absent an affirmative act by the State,

the State’s duty of care was a matter to be redressed

by state tort law, not the Constitution. Jd. at 202-203.

Likewise, in Collins the Court rejected the argu-

ment that a city’s “deliberate indifference” to the

safety of one of its employees who died by asphyxia

during the course of his employment “was arbitrary

government action that must ‘shock the conscience.’ ”

503 U.S. at 126. Because the “deliberate indifference”

claim was “analogous to a fairly typical state-law tort

claim,” it was a matter to be addressed by the States

and municipalities, “rather than by federal judges

interpreting the basic charter of Government for the

entire country.” Jd. at 128-129.

Against this background, the Ninth Circuit’s hold-

ing ultimately is flawed because it has no founda-

tion in constitutional principle. After all, this Court

rejected the contention that negligent acts by govern-

ment officials violate due process because such an

18

expansive reading of the Clause has no relationship to

the purpose of restraining governmental “oppression.

See Daniels, 474 U.S. at 330-333. And while reckless

conduct may present a greater danger of injury than

does negligence, that difference likewise is not rele-

vant to the purposes of the Due Process Clause. Of

course, actions that are reckless may appropriately

be actionable in tort. The Constitution, however,

deals with the large concerns of governors and

the governed, but it does not purport to supplant

traditional tort law in laying down rules of con-

duct to regulate liability for injuries that attend

living together in society. [The Court] ha[s]

previously rejected reasoning that “would make

of the Fourteenth Amendment a font of tort law

to be superimposed upon whatever systems may

already be administered by the States[.]”

Daniels, 474 U.S. at 332 (citations omitted). And

“Ti]t is no reflection on either the United States Con-

stitution or the importance of traditional tort law to

say that they do not address the same concerns.” /d.

at 333. See Collins, 503 U.S. at 129.

Contrary to the court of appeals’ conclusion, the

State thus does not “deprive” the fleeing individual

or the general public of any due process right simply

by initiating and then continuing a high-speed police

pursuit. There of course is no “deprivation” of life

or liberty in the pursuit itself, even if the pursuit is

initiated and continued in reckless disregard for the

pursued individual’s safety; during the course of the

pursuit, the fleeing individual is not restrained by

any affirmative act of the State." The deprivation

™ For instance, a fleeing suspect who is pursued by law

enforcement officials but eludes capture surely could not have

19

occurs, if at all, when there is an affirmative act by

the State that vitiates the individual’s liberty. And

in this case, there was no such affirmative act by the

State because Officer Smith “did not intend to hit

Lewis with his patrol car.” Pet. App. 10 n.3. Lewis’s

restraint from movement and loss of life were acci-

dental and thus do not constitute a “deprivation” of

due process.

Recognizing a deprivation of due process in these

circumstances would work an unprecedented expan-

sion of substantive due process, conferring a cause

of action upon individuals who have not been re-

strained in their liberty by an affirmative act of the

State. Cf. DeShaney, 489 U.S. at 198-200 (distin-

guishing cases in which duty of care was imposed on

State for individuals within its custody). Such a prec-

edent potentially would expose all sorts of state con-

duct to constitutional scrutiny, such as the State’s

unsafe maintenance of its roadways or water supply,

its use of asbestos in its buildings, or its contamina-

tion of the air with pollutants in a manner that is

claimed to be reckless. The Fourteenth Amendment

was not meant to address these sorts of dangers “that

attend living together in society.” Daniels, 474 U.S.

at 322.

2. The decision below also is flawed for a second,

related reason. Obviously, not all intentional depri-

been deprived of life or liberty during the pursuit, even if the

law enforcement officials initiated and continued the pursuit

in reckless disregard for the suspect’s safety. Cf. Tennessee

v. Garner, 471 U.S. 1, 31 (1985) (O’Connor, J., dissenting)

(expressing skepticism about “allow[ing] criminal suspects

who successfully escape to return later with § 1983 claims

against officers who used, albeit unsuccessfully, deadly force

in their futile attempt to capture the fleeing suspect”’).

20

vations of life, liberty, or property deny the affected

individual due process; a constitutional violation

occurs only when the government’s conduct is 80

“brutal” or “offensive” that it “shocks the conscience.

This constitutional standard was first enunciated in

Rochin Vv. California, 342 U.S. 165, 172 (1952), where

the Court held that forced pumping of a suspect’s

stomach was a violation of due process because such

coercive conduct “shocks the conscience.” The Court

found that action to be conscience-shocking because it

involved a kind of “brutal conduct” comparable to

coerced confessions that “offend the community’s sense

of fair play and decency.” Jd. at 173.

In the 45 years following Rochin, the Court has

consistently applied the “shocks the conscience” stand-

ard to substantive due process claims involving al-

legedly arbitrary deprivations of life or liberty by

individual government officials acting apart from a

specific statutory or regulatory scheme. In Breith-

aupt v. Abram, 352 U.S. 432, 435 (1957), for in-

stance, the Court held that the taking of a sample of

blood from an individual “under the protective eye of

a physician” was not “brutal” or “offensive” in the

sense required to “shock[] the conscience.” Jd. at

435-437. In the Court’s most recent consideration of

such a substantive due process claim, it likewise held

that a city’s alleged conduct in failing to provide a

safe working environment to its employees did not

state a claim under the Fourteenth Amendment be-

cause the conduct could not “properly be characterized

as arbitrary, or conscience shocking, in the constitu-

tional sense.” Collins, 503 U.S. at 128.°

® See also United States v. Salerno, 481 U.S. 739, 746 (1987)

(“So-called ‘substantive due process’ prevents the government

21

The Ninth Circuit’s deliberate indifference or reck-

lessness standard cannot be reconciled with these de-

cisions: it would permit violations of substantive due

process without any determination that the alleged

conduct was “brutal,” “offensive,” or “shocking to

the conscience.” At the same time, by hinging lia-

bility on the official’s state of mind, the “deliberate

indifference” standard fails to take into consideration

the “community’s sense of ‘decency and fairness.’ ”

Breithaupt, 352 U.S. at 436 (recognizing that a

“blood test procedure has become routine in our every-

day life’). The deliberate indifference standard thus

ignores “our Nation’s history, legal traditions, and

practices,” which provide “crucial ‘guideposts for re-

sponsible decisionmaking’ ” in the due process analy-

sis. Washington v. Glucksberg, 117 S. Ct. 2258, 2268

(1997) (quoting Collins, 503 U.S. at 125).

Indeed, in only one area has the Court adopted a

standard of deliberate indifference as the measure

of evaluating the constitutionality of state conduct.

In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the

Court considered an Eighth Amendment claim of

cruel and unusual punishment in the context of a

prisoner’s failure to receive medical treatment. This

Court held “that deliberate indifference to serious

from engaging in conduct that ‘shocks the conscience,’ or

interferes with rights ‘implicit in the concept of ordered

liberty.’”") (citations omitted) ; Moran v. Burbine, 475 U.S.

412, 433-434 (1986) (no substantive due process violation

where conduct is not so egregious as to “shock[{] the sensi-

bilities of civilized society as to warrant federal intrusion

into the criminal processes of the States”) ; Whitley v. Albers,

475 U.S. 312, 327 (1986) (“ ‘conduct that shocks the con-

science’ or ‘afford[s] brutality the cloak of law’ * * * violates

the Fourteenth Amendment”) (quoting Rochin, 342 U.S. at

173).

22

medical needs of prisoners constitutes the ‘unneces-

sary and wanton infliction of pain,’ proscribed by the

Eighth Amendment.” Ibid. (citation omitted). This

standard was appropriate for evaluating the State s

failure to provide medical care to prisoners within

its custody “because the State’s responsibility to at-

tend to the medical needs of prisoners does not

ordinarily clash with other equally important govern-

mental responsibilities” and because medical care

generally did not involve situations requiring split-

second decisions. Whitley v. Albers, 475 U.S. 312,

320 (1986).

In Whitley, however, the Court rejected the appli-

cation of the “deliberate indifference” standard in

evaluating a prisoner’s claim that prison officials sub-

jected him to cruel and unusual punishment by shoot-

ing him in the course of their attempt to quell a

prison riot. The Court reasoned that “a deliberate

indifference standard does not adequately capture the

importance of such competing obligations, or convey

the appropriate hesitancy to critique in hindsight

decisions necessarily made in haste, uuder pressure,

and frequently without the luxury of a second

chance.” Ibid.

The same holds true for police pursuits. The State

has important obligations to enforce the law, to appre-

hend suspects, to investigate suspicious conduct, and

to prevent fleeing suspects from endangering others

or themselves. Typically, as was true in this case,

whether to initiate and then to continue a pursuit

requires snap decisions: the law enforcement officer

must act in great “haste [and] under pressure, and

frequently without the luxury of a second chance.”

Whitley, 475 U.S. at 320. See Graham, 490 U.S. at

397. The entire pursuit in this case, for example,

23

lasted all of 75 seconds. To adopt a “deliberate in-

difference” standard to evaluate this conduct would

undervalue the importance of the State’s obligations

in law enforcement and would invite wholesale second-

guessing of decisions that must be made under con-

siderable pressure.

C. The Regulation Of Police Pursuits Is Appropriately

Left To The States And Local Governments

The Court has long recognized “the limitations of

the judicial function in controlling the myriad daily

situations in which policemen and citizens confront

each other on the street.” Terry v. Ohio, 392 U.S. 1,

12 (1968). This is especially true for “police con-

duct * * * [involving] swift action predicated upon

the on-the-spot observations of the officer.” Jd. at 20.

Principles of federalism advise that the state and

local governments have the primary responsibility to

oversee the practices of their police departments.

While the Fourth Amendment provides a federal

standard with which vehicular pursuits must com-

port, neither that provision nor the Fourteenth

Amendment was intended to address the unintended

consequences of this police practice. These matters,

which involve important policy questions not only

about police practices, but also about the availability

of tort compensation and official immunities, should

be left for the States and local governments to

address.

1. Vehicular pursuits serve a vital function in law

enforcement. According to the available data, many

tens of thousands (between 50,000 and 500,000)

vehicular pursuits occur each year. See Edmund F.

Fennessy et al., U.S. Dep’t of Transp., A STuDy oF

THE PROBLEM OF Hor PursuIT BY THE POLICE 149

24

(1970). Not only do vehicular pursuits play a crucial

role in the apprehension of criminal suspects, they

also are essential in maintaining respect for the rule

of law. Without vehicular pursuits, ordinary traffic

laws could be disobeyed at will. And fleeing felons

could easily elude capture by taking to the streets

and outrunning the law in a “getaway” car.

The use of vehicular pursuits must be distinguished

from the use of deadly force against a fleeing sus-

pect, which was found by the Court to be per se

unreasonable except where, “to prevent the escape

of * * * felony suspects[,] * * * the officer has prob-

able cause to believe that the suspect poses a threat

of serious physical harm, either to the officer or to

others.” Garner, 471 U.S. at 11. Unlike the shooting

of a gun, the use of a vehicle is a facet of living in

today’s society, and it facilitates law enforcement’s

efforts to apprehend suspects. And unlike the use of

deadly force against a fleeing felon, vehicular pur-

suits are not “a self-defeating way of apprehending

a suspect.” Jd. at 10.

To the limited extent that data on vehicular pur-

suits exist, it appears that the great majority end

without injury and with the apprehension of the

fleeing suspect. See generally Fennessy, supra, at

149-156. For instance, a 1983 California Highway

Patrol study of freeway pursuits in California esti-

mated that 89% ended without injury and 77%

ended in apprehension; only 1% resulted in death.

See Hugh Nugent et al., National Institute of Justice,

U.S. Dep’t of Justice, RESTRICTIVE POLICIES FOR

HIGH-SPEED POLICE PURSUITS 6-7 (citing Operational

Planning Section, California Highway Patrol, Pur-

SUIT STUDY (July 1983) ).

25

Similarly, in Minnesota, nearly 75% of the vehicu-

lar pursuits conducted by law enforcement during

1989-1993 ended without accident. See Robert Crew

et al., Probabilities and Odds in Hot Pursuit: A Bene-

fit-Cost Analysis, 23 J. Crim. Just. 417, 419 tbl. 1

(1995). Moreover, an analysis of these pursuits

concluded that the pursuits most likely to involve

deaths were those initiated to apprehend fleeing felons

or individuals suspected of driving while intoxicated.

Id. at 422-423. The study concluded that “most

[pursuits] are initiated for traffic offenses, most do

not involve accidents, and most end in arrests.” /d.

at 419.

In Metro Dade County, Florida, which has the larg-

est law enforcement department in the southeastern

region of the United States, 323 vehicular pursuits

were conducted in 1987, with 73% ending in arrests.

See Geoffrey P. Alpert & Roger G. Dunham, Policing

Hot Pursuits: The Discovery of Aleatory Elements,

80 J. Crim. L. & CRIMINOLOGY 521, 527-528 (1989).

A study of these pursuits reported three important

findings. First, vehicular pursuits occurred “fewer

than one * * * per twenty-four-hour day,” which was

lower than expected “[g]iven the number of police

cars on the road, the number of miles driven by police

in the metropolitan area under study, and the rela-

tively high crime rate of the area.” Geoffrey P.

Alpert & Roger G. Dunham, PoLice Pursuit Drivinc

58 (1990). Second, contrary to popular perception,

“the vast majority of the pursuits taking place were

of short duration and involved relatively slow speeds.”

Id. at 59. Third, and most important, the majority

of pursuits ended without incident: 83% of the chases

that occurred in the 1985-1987 period “resulted in

no personal injury,” and only a third resulted in an

26

accident, a number that represents “less than 5% of

all the accidents involving police cars.” Ibid. (em-

phasis in original). Moreover, the overwhelming

number of injuries (87%) were minor, “involv[ing]

only minor scratches, cuts, and bruises”; only 7%

were serious and 1% resulted in death. Jd. at 60.

Significantly, more than 75% of the pursuits resulted

in an arrest. Even though “a majority of the pur-

suits were initiated for relatively minor traffic in-

fractions, many of those apprehended were charged

with serious felony offenses unrelated to the pursuit

(nearly 50% ).” Ibid.

Undoubtedly, that some injuries and deaths do

result from vehicular pursuits is a reason for public

concern. But a myriad of considerations must go

into determining the appropriate balance in this area.

On the one hand, of course, there is an interest in

compensating persons injured in the course of police

pursuits. On the other hand, however, there is the

danger that expansive liability will excessively inhibit

police behavior and impose undue burdens on States

and municipalities:

Many units of local and county governments

have had to bear the brunt of multi-million dollar

judgments brought about by negligently per-

formed high speed chases. Liability insurance

for police patrols, which has always been expen-

sive, has tripled or quadrupled in cost in recent

years. For some jurisdictions, liability coverage

has become virtually unobtainable. This means

that many municipalities, townships and even

some county governments, already struggling

with the problem of funding essential public

services from a diminishing revenue base, must

now contend with the prospect of self-insuring

27

the high-risk work activities of their law enforce-

ment personnel.

Richard G. Zevitz, Police Civil Liability and the Law

of High Speed Pursuit, 70 Marg. L. REv. 237, 251-

252 (1987) (footnotes omitted). Addressing this

problem “involve[s] a host of policy choices that must

be made by locally elected representatives, rather than

by federal judges interpreting the basic charter of

4 ea for the entire country.” Collins, 503 U.S.

at ,

Recognizing this reality, States have responded in

an appropriate way. Many States now require law

enforcement agencies to adopt official pursuit policies

to regulate the use of high-speed vehicular pursuits

by law enforcement officials. See, e.g., Wis. STar.

§ 346.03(6) (1997) (“Every law enforcement agency

which uses authorized emergency vehicles shall pro-

vide written guidelines for its officers and employees

regarding exceeding speed limits * * * when other-

wise in pursuit of actual or suspected violators”).

In addition, “[e]ven before pursuit guidelines were

required, and in many places where there is still no

such legal requirement, thousands of law enforcement

agencies throughout the nation adopted official policies

setting forth those circumstances under which high

speed pursuit was permitted.” Zevitz, supra, at 238.

These pursuit guidelines all seek to ensure that

vehicular pursuits are used to apprehend fleeing sus-

pects “without undue risk to life or property.” Id.

at 239.° Moreover, in many States the officers who

* Congress is also considering the issue of vehicular pur-

suits. For instance, legislation has been proposed to require

the establishment of pursuit policies and training by the

States. NATIONAL POLICE PuRsuIT PoLicy AcT oF 1995,

S. 923, 104th Cong. (1995).

28

engage in the pursuit may be held liable;* many

States also provide that the municipality employing

the officer may be held liable.” In other States, like

California, the officer is accorded immunity, while the

municipality may be held liable.”

” See, e.g., Estate of Aten v. City of Tucson, 817 P.2d 951

(Ariz. 1991) ; Zapp Vv. Kukuris, 847 P.2d 150 (Colo. Ct. App.

1992); Tetro Vv. Town of Stratford, 458 A.2d 5 (Conn.

1983) ; City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.

1992); Thompson V. Payne, 453 S.E.2d 803 (Ga. Ct. App.

1995) ; Currie v. Lao, 592 N.E.2d 977, 982 (Ill. 1992) ; Fiser

v. City of Ann Arbor, 339 N.W.2d 413 (Mich. 1983) ; Ober-

kramer v. City of Ellisville, 706 S.W.2d 440 (Mo. 1986) ;

Fiedler v. Stonack, 661 A.2d 231 (N.J. 1995) ; Bawm v. Ohio

State Highway Patrol, 650 N.E.2d 1347 (Ohio 1995) ; Lowri-

more V. Dimmit, 797 P.2d 1027 (Ore. 1990) ; Haynes v. Ham-

ilton County, 883 S.W.2d 606 (Tenn. 1994) ; City of Lancaster

v. Chambers, 883 S.W.2d 650 (Tex. 1994); Morais v. Yee,

648 A.2d 405 (Vt. 1994); Colby v. Boyden, 400 S.E.2d 184

(Va. 1991); Mason v. Bitton, 534 P.2d 1360 (Wash. 1975) ;

Peak Vv. Ratliff, 408 S.E.2d 300 (W. Va. 1991) ; Cavanaugh Vv.

Andrade, 550 N.W.2d 103 (Wis. 1996); DeWald v. State,

719 P.2d 643 (Wyo. 1986).

™ See, e.g., Estate of Aten Vv. City of Tucson, 817 P.2d 951

(Ariz. 1991); Cline v. Rabson, 856 P.2d 1 (Colo. Ct. App.

1992); Fiser v. City of Ann Arbor, 339 N.W.2d 413

(Mich. 1983); Bittner v. City of St. Louis Police Bd. of

Comm'rs, 925 S.W.2d 495 (Mo. Ct. App. 1996) ; Bawm v. Ohio

State Highway Patrol, 650 N.E.2d 1347 (Ohio 1995) ; Lowri-

more V. Dimmit, 797 P.2d 1027 (Ore. 1990) ; Haynes v. Ham-

ilton County, 883 S.W.2d 606 (Tenn. 1994) ; City of Lancaster

v. Chambers, 883 SW.2d 650 (Tex. 1994); Mason v. Bitton,

534 P.2d 1860 (Wash. 1975); Cavanaugh v. Andrade, 550

N.W.2d 103 (Wis. 1996); DeWald v. State, 719 P.2d 643

(Wyo. 1986).

12 See, e.g., Thomas v. City of Richmond, 892 P.2d 1185,

1189-1190 (Cal. 1995).

29 -

In these circumstances, federal courts should not

_ Substitute themselves for state and local decision-

makers, thus pretermitting the workings of the politi-

cal process. The kind of injury respondents allege is

analogous to a state tort claim and, accordingly,

should be left for state law to address.“ “Regulation

of the duties that state officials owe to various classes

of citizens, and of the iminaunities to which state offi-

cials are entitled, is a traditional state prerogative

* * *.” Richard H. Fallon, Jr., Some Confusions

About Due Process, Judicial Review, and Constitu-

tional Remedies, 93 CoLuM. L. REv. 309, 350 (1993).

Holding a substantive due process violation to arise

from an accidental injury, and making merely reck-

less conduct the source of a constitutional cause of

action, “would displace traditional state authority”

in this area and “thereby alter longstanding balances

of power in the federal system.” Jbid. That is not a

path that the Court should follow.

% Tort law is well adapted to deal with the complexities

likely to be found in cases of this sort. Under tort law, for

example, recovery may be limited if the injured party was

contributorily or comparatively negligent during the pursuit.

See, e.g., Currie v. Lao, 592 N.E.2d 977, 978 (Ill. 1992).

«30

CONCLUSION |

The judgment of the court of appeals should be

reversed.