# Amicus Curiae Brief — Countyof Sacramento v. Lewis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0051%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 833 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0051%3A13. Public record. Not legal advice.