Wrong-way drivers on freeways have long created a lethal hazard for the public and law enforcement. The mere act of driving the wrong way on a freeway or one-way street may result in a serious or fatal collision; however, an even more glaring threat looms when drivers are actively eluding capture by law enforcement and, as a means of escape, drive the wrong way onto a freeway, one-way street, or ramp. These drivers are coined “lethal drivers” and present an immediate threat to the public. By their reckless and felonious driving, they instantly elevate the outcome to an almost certain tragedy or fatality. It is the actions of lethal drivers that beget two questions for law enforcement (1) how should officers respond? and (2) what actions should be taken?

In the last two decades of U.S. policing, driving policies and pursuit policies have become far more stringent. While restrictions regarding use of force and driving policies are necessary for public safety, an unforeseen consequence of these policies may now be the effect on an officer’s ability to stop the deadly threat created by a lethal driver.

With this effect in mind, it may be time for law enforcement executives to closely examine a policy shift to address lethal drivers. The necessity to progress and advance policies is not a new concept. One example of a policy lifecycle is the evolution and obsolescence of the use-of-force continuum. During the late 1980s and 1990s, many departments adapted a use-of-force continuum or stair-step progression for use-of-force policies. Such policies proved problematic in litigation, as the lay person didn’t usually comprehend that each level of force need not be realized to progress to a higher level. As a result, some departments moved away from a continuum-centered policy.

At times, especially in law enforcement, a change in policy involves a measurement of benefit versus risk. For example, following the tragic 1999 shooting at Columbine High School (Colorado), Law enforcement in the United States had to revisit the policies that, at the time, dictated that first responders await the arrival of SWAT. Although the risk to first responding officers due to the new rapid deployment polices was staggering, it was outweighed by the benefit of preserving the lives of defenseless students and teachers.

Logically, current law enforcement dogma suggests that police officers should not pursue suspects, except for those committing violent crimes. Most police policies direct officers to terminate pursuits and to some extent go the other direction to avoid “pushing” the suspect. Additionally, almost all policies forbid driving the wrong way on a freeway or one-way street.

Irrespective of the position of a law enforcement agency, the instant a person who is eluding police capture begins to drive with reckless abandon, that person creates an ominous and possibly fatal threat to innocent people. If the event begins because an officer attempted to stop the suspect and the suspect flees and the officer retreats—but the suspect continues to drive dangerously, the threat does not diminish because the officer retreated. If the suspect in such a case becomes even more aggressive after he or she knows the police are trying to stop him or her, a mere retreat by law enforcement has not been proven to ensure the driver will slow down or stop driving erratically. No matter how the lethal drivers get to the point of reckless driving, the results of their actions create an immediate threat to the public. If a driver’s reckless and erratic behavior or wrong-way driving is brought to the attention of law enforcement via a 9-1-1 call, members of the public have a reasonable expectation that law enforcement will take swift action to preserve their safety.

In the same way that the public expects law enforcement to respond to a lethal threat, police officers expect administrative support in their efforts to take reasonable action to preserve innocent lives. On more than one occasion, the question has been asked by an officer to a police supervisor, “Why didn’t you order someone to ram the car?” The answer is both elementary and complex. Ramming a car of a lethal driver is similar to shooting a suspect in a deadly force encounter; it is essentially a decision that needs to be made by the officers present who can assess the actions of the perpetrators.
While policies cannot address each type of dynamic or each type of encounter an officer may face, officers should always try to adhere to departmental policies and procedures, in addition to using proper judgment and discretion. Notably, nothing in police policy should ever be designed or intended to repress the use of common sense and sound police tactics. Officers must at times deviate from established departmental policies and procedures when doing so is in the obvious best interests of the community and the department they represent.

In that vein, it must be examined if departments are genuinely providing officers the latitude to make the best decisions regarding the use of deadly force against a lethal driver who is intentionally and recklessly endangering other individuals. There are various U.S. Supreme Court decisions regarding law enforcement’s use of deadly force that can provide guidance to departments reexamining their policies for these situations.

In Graham v. Connor, the U.S. Supreme Court instructed lower courts to always ask three questions to measure the lawfulness of a particular use of force. First, what was the severity of the crime that the officer believed the suspect to have committed or be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape?¹

The Supreme Court cautioned lower courts examining police use-of-force cases to consider, “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation.” The court also stated, “the use of force should be measured by what the officer knew at the scene, not by the, ‘20/20’ vision of hindsight.”²

In Scott v. Harris the U.S. Supreme Court ruled that a police officer’s conduct is “objectively reasonable” under the Fourth Amendment (qualified immunity) when an officer makes an on-the-spot decision to terminate a high-speed pursuit by striking the fleeing suspect’s vehicle if the suspect’s actions indicate that the driver would continue to drive in a reckless and dangerous manner that puts the lives of innocent persons at serious risk of death.³

In Plumhoff v. Rickard, the Supreme Court found the use of deadly force by police officers— in that case, firing multiple rounds into a car during a high-speed chase, contributing to the death of the driver and a passenger—was not unreasonable given the threat to public safety posed by the driver’s reckless behavior. As such, the officers did not violate the Fourth Amendment. In any event, the officers were entitled to qualified immunity because they did not violate any clearly established law.⁴

The Daigle Law Group, LLC, a law firm in Connecticut advertised as “Improving Police Operations Effectiveness and Management,” recently presented a publication on Plumhoff where the following caution was provided to agencies:

Despite this ruling, we strongly caution departments against adopting a general policy allowing officers to shoot their weapons at a moving vehicle. This case, by no means, provides a blanket authorization for a department to adopt such a policy. The Rickard case was fact specific, meaning that the Court’s ruling was based on the specific circumstances surrounding this case. Indeed, the Court went so far as to say that this case may have been decided differently if the facts had been altered (e.g., Rickard was incapacitated at the time the shots were fired, or if he attempted to surrender to the officers). These are the very type of questions that present a question of fact for a tribunal and could very well thwart a department’s ability to obtain summary judgment.”⁵

The Daigle Group goes on to state that

When advising departments, we strongly recommend that a department’s Vehicle Pursuit policy contain specific language stating that officers are prohibited from discharging firearms at or from a moving vehicle unless officers reasonably believe deadly force is necessary to defend the officer or a third person from the use, or imminent use of deadly force. The policy should provide that officers will not discharge their firearms at moving vehicles except under extreme circumstances. By adopting such a policy and ensuring that officers are provided training on the policy, as well as the use of deadly force, may help to protect departments from potential liability.⁶

With regard to policy, the Daigle article provides compelling wording that affords law enforcement agencies a caveat to use deadly force to end a lethal driving event under “extreme circumstances.” Law enforcement leaders have an obligation to provide the officers of their jurisdiction with definitive guidelines and policies whenever possible. To ignore this issue and cast variable judgment is impractical and unfair to the practitioners and enforcers of the law. Moreover, failure to at least examine and train for such a paradigm shift is iniquitous to the communities law enforcement agencies serve. Perhaps it is time for law enforcement leaders to consider training their officers for applications of lethal force in driving situations in which the suspect presents a deadly, immediate, or imminent threat to the community. ♦

Notes:
¹ Graham v. Conner, 490 U.S. 386 (1989).
² Id. at 396–397.
³ Scott v. Harris, 500 U.S. 372 (2007).
⁴ Plumhoff v. Rickard, 572 U.S.____ (2014).
⁵ Daigle Law Group, Supreme Court Approves Deadly Force to Stop a Dangerous Pursuit (2014), 4, http://www.daiglelawgroup.com/wp-content/uploads/2014/06/Plumhoff-v.-Rickard-SC-approves-Deadly-Force-to-Stop-Pursuit.pdf (accessed March 25, 2015).
⁶ Ibid.

Please cite as

Heston Silbert, “Examining Law Enforcement’s Response to Lethal Drivers,” The Police Chief 82 (April 2015): web only.