BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
SB 1403 S
Senator Aanestad B
As Amended May 3, 2004
Hearing Date: May 4, 2004 1
Vehicle Code 4
GWW:cjt 0
3
SUBJECT
Kristie's Law: Establishing Standards for Public Entity and
Employee Immunity from Liability for Third Party Injuries
and Deaths Arising from Police Pursuits
DESCRIPTION
This bill would repeal the current broad immunity from
liability for public agencies and their peace officers when
a suspect fleeing a police vehicle pursuit causes injury or
death to an innocent third party. It would instead provide
that:
(a) The public agency must adopt and implement, and its
peace officers must adhere to, a police vehicle pursuit
policy that meets specified guidelines, to obtain an
immunity from liability for injury or death caused to
innocent third parties by a suspect fleeing a police
vehicle pursuit; and
(b) A peace officer would not be liable for the personal
injury or death of a third party caused by a collision
resulting from a police vehicle pursuit if the peace
officer was acting within the scope of his or her
employment, and the action was not performed in bad
faith or in a grossly negligent manner.
The bill would establish minimum guidelines and procedures
for police vehicle pursuits, as specified, that a public
agency must adopt and implement, and its peace officers
must adhere to, as a condition of obtaining the liability
(more)
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immunity.
The bill would also make legislative findings regarding
police vehicle pursuits, their costs, risks, and purpose.
The bill would not affect the current immunity barring a
suspect or accomplice from suing for injuries resulting
from a police vehicle pursuit.
BACKGROUND
A nearly identical bill, SB 1866, was heard last week and
failed passage by a 3 - 1 vote, and granted
reconsideration. Due to fiscal bill deadlines,
SB 1866 could not be reheard without a rule waiver.
However, SB 1403, a nonfiscal bill, was amended to
incorporate the contents of SB 1866 in the form voted upon
by the Committee, and is up for consideration. Staff is
advised that the author is considering further amendments
to meet the concerns expressed last week over the "imminent
peril" standard. (See Comment 1.)
Given the late amendment of SB 1403, neither side has had
any opportunity to submit support and opposition letters.
Therefore, this analysis will assume the same positions
taken on SB 1866, and the same arguments for and against
that bill, will be made with respect to SB 1403.
SB 1403 arises from the tragedy that struck the Priano
family when their 15-year old daughter Kristie was killed
in a collision caused by a suspect fleeing a police vehicle
pursuit. The loss was particularly senseless because the
suspect's identity was already known to the pursuing
officers. Moreover, she had posed no danger to others
until the pursuit was initiated and could have been
arrested later for stealing her mother's car.
This and other examples are offered by Senator Aanestad,
author of SB 1866, as compelling evidence for the need to
change the law so that public safety and innocent lives are
not put at dangerous risk by police pursuits that do not
justify their risks to the public's safety. (See Comment
3a.)
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SB 1403 also responds to a plea from the Fourth District
Court of Appeal which urged the Legislature "to revisit
this statute and seriously reconsider the balance between
public entity immunity and public safety. The balance
appears to have shifted too far toward immunity and left
public safety, as well as compensation for innocent
victims, twisting in the wind." (Hoa Nguyen v. City of
Westminister (2002) 103 Cal.App.4th 1161.) (In Nguyen, a
suspect in a stolen van was pursued by the police into a
high school parking lot just as classes had ended. During
the course of the parking lot pursuit, the suspect's van
was rammed twice by the pursuing police vehicle and struck
a trash dumpster, propelling the dumpster into Nguyen
causing his eventual death.)
CHANGES TO EXISTING LAW
1. Existing law , Vehicle Code Section 17004.7, provides that
if a public agency adopts a written policy for police
vehicle pursuits that meets specified standards, the
public agency is immune from liability for death, injury
or damage caused to third parties when a suspect fleeing
a police pursuit causes an accident which results in that
third-party injury or damage. Case law, Hoa Nguyen v.
City of Westminister, Id., has interpreted Section
17004.7 to apply the immunity even when the public agency
has not implemented the adopted policy or when the public
entity's peace officer was not complying with the adopted
policy in conducting the vehicular pursuit that led to
the third-party injury or death.
Existing law , Vehicle Code Section 17004, immunizes a
peace officer from civil liability for any injury or
death to any person resulting from the operation of a
police vehicle in the line of duty "when in the immediate
pursuit of an actual or suspected violator of the law."
This bill would instead provide the following narrower
immunity for third-party injuries or deaths resulting
from a police vehicle pursuit:
a) The public agency would be immune if it adopted and
implemented, and its officers adhered to, a written
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policy on police vehicle pursuits that complies with
specified guidelines and procedures; and
b) The peace officer employee would be immune if the
officer was acting within the scope of his or her
employment, and the action taken was not performed in
bad faith or in a grossly negligent manner.
This bill would not affect the current immunity barring a
suspect or accomplice from suing for injuries resulting
from a police vehicle pursuit.
2. This bill would make specified legislative finding and
declarations (see Comment 7) and make its provisions as
known as "Kristie's Law."
3. This bill would establish minimum guidelines and
procedures for vehicle pursuits by peace officers (see
Comments 4a, 4b, and 4c), and would set forth numerous
definitions (see Comment 4e).
4. This bill would require the Department of Motor Vehicles
to include at least one question in each license test
regarding the risks and punishments associated with
eluding a pursuing peace officer's motor vehicle.
5. This bill would also enact changes relating to the
reporting of police vehicle pursuits. (See Comment 6.)
COMMENT
1. "Imminent peril" standard may fall in favor of "violent
felony" standard
SB 1403 would propose that "a peace officer may pursue a
vehicle if there is reason to believe, or if there is a
determination that, imminent peril exists." The bill
also proposed a definition of "imminent peril" that was
criticized as being too restrictive, unworkable, and
internally inconsistent. In response to the Chair's
request, the author agreed to delete the controversial
definition, leaving the undefined standard, with the
expectation that a more workable bright line definition
could be fashioned.
Committee staff is advised by the author's office that he
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is considering an amendment to drop the "imminent peril"
standard in favor of a standard that will allow police
pursuits when the officer believes or has reason to
believe that the suspect has committed or is attempting
to commit a violent felony as that term is defined in
Penal Code Section 667.5. In support of this change, he
points to the Orlando, Florida Police Department Policy
which restricts pursuits to "forcible violent felonies"
such as: murder, manslaughter, armed robbery, armed
sexual battery, arson of an inhabited structure, use of
an explosive device on an inhabited structure,
kidnapping, armed carjacking, burglary with a firearm,
aggravated assault on a peace officer with a deadly
weapon, and aggravate battery on a peace officer
resulting in serious injury.
The list of violent felonies set forth in the Penal Code
is even more expansive, thus granting peace officers
greater authority to commence pursuits. As used in
Section 667.5, "violent felony" means any of the
following:
Murder or voluntary manslaughter.
Mayhem.
Forcible rape, including spousal rape.
Forcible sodomy, forcible oral copulation, forcible
foreign object rape, or forcible rape in concert.
Felony child molestation.
Any felony punishable by death or life
imprisonment.
Any felony involving the infliction of great bodily
injury upon any person other than an accomplice, or in
which the suspect uses a firearm.
Any robbery.
Arson causing great bodily injury or involving an
inhabited structure.
Attempted murder.
Explosion of a destructive device causing death,
great bodily injury or mayhem, or with intent to
commit murder.
Kidnapping.
Assault with the intent to commit mayhem, rape,
sodomy, oral
copulation, foreign object rape or child molestation.
Carjacking achieved by forcible means.
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Criminal street gang activities of extortion or
threatening a victim or witnesses.
First degree burglary when the occupant of the
inhabited dwelling was present during the commission
of the crime.
Any offense in which a firearm is used in violation
of Section 12022.53 (murder, mayhem, kidnapping,
robbery, carjacking, assault to commit specified sex
offenses, assault on a peace officer or firefighter,
rape, rape in concert, sodomy, child molestation, oral
copulation, foreign object rape, assault or hostage
taking by a prisoner, and any felony punishable by
death or life imprisonment).
Use of a weapon of mass destruction against another
person or the environment. [Penal Code Section 11418.]
A few of the listed crimes, e.g., burglary, or extortion
or threatening a witness as part of criminal gang
activity involve situations where the harm is to property
or the identity of the perpetrator is already known. In
such cases, the balance between allowing a police pursuit
and risking public safety by a pursuit would seem to
favor not creating a risk to public safety.
If so amended, a "violent felony" bright line would
remove the uncertainty posed by the "imminent peril"
definition that requires a level of foresight that few,
if any, person can attain. Hence, opponents voiced
legitimate concerns in arguing that every police pursuit
could result in litigation because the danger in
hindsight was not "certain, immediate and impending."
While striking the "imminent peril" standard in favor of
a "violent felony" test would indeed create a bright line
for officers and would address the concern about an
unworkable standard, opponents would rather retain their
current full discretion, and are thus opposed to the
proposed standard for police pursuits as well as to the
other restrictive guidelines being proposed. (See
Comment 4.)
SHOULD NOT THE STANDARD OF "IMMINENT PERIL" BE DELETED IN
FAVOR OF A MORE WORKABLE STANDARD?
2. Stated need for bill: To rebalance the police pursuit
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law towards public safety
The author asserts that adoption of a statewide police
vehicle pursuit policy is necessary to prevent the many
unnecessary injuries or fatalities to innocent bystanders
that have arisen all too frequently in police vehicle
pursuits under current law. He also asserts that a
statewide policy would be in accordance with an officer's
duty to protect the public from harm, and would protect
peace officers themselves in the execution of their
duties. He writes:
A peace officer has a duty to protect the public and
maintain the peace and safety of society. The
factors that a peace officer must assess in deciding
whether or not to engage in a pursuit can change at
any moment, resulting in serious injury or death.
The speed of the pursuit, the road conditions,
pedestrian or vehicular traffic do not remain
constant throughout a peace officer in pursuit.
While law enforcement provides a great safety
service to the community, its highest responsibility
is the prevention of injury or death to that same
public. Law enforcement should not be exempted from
conducting its activities in the most cautious and
efficient manner to ensure the safety of the public
during its apprehension of fleeing suspects.
According to the author's background information,
California leads the nation in the number of innocent
victims killed in pursuits. A study by the NHTSA
(National Highway Traffic Safety Administration) shows
that in 2001 there were 51 deaths in California that
resulted from police pursuits. Twenty-two of the 51
deaths were innocent bystanders/drivers of other vehicles
not involved as a suspect. The total number of deaths
reported throughout the nation was 365 in 2001. Florida,
another state with a large population, had only 15
fatalities in 2001. According to federal statistics, 181
innocent bystanders died in traffic collisions arising
from police vehicle pursuits in a ten-year period between
1992 and 2001. Overall, there were 541 pursuit-related
deaths.
According to the California Highway Patrol, of the 5,334
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police pursuits in the year 2000, 21 percent of those
pursuits resulted in collisions.
Until its recent change in policy, the Los Angeles Police
Department (LAPD) led the nation in dangerous police
pursuits, and their number increased by more than 30
percent between the years 2000 and 2001. In 2001, there
were 781 police pursuits, the equivalent of more than two
per day. Sixty percent of the police pursuits initiated
by LAPD involved minor traffic violations, including
missing license plates or broken taillights. (In
response to the number of horrific accidents arising from
police pursuits, the LA Police Commission approved an
interim ban on police chases for minor traffic
infractions, such as missing license plates and broken
taillights. Officers are still allowed to chase persons
suspected of committing misdemeanors or felonies and
persons who fail to stop for offenses such as reckless
driving.)
According to the author:
The LAPD study also showed that in 2001 there were
154 crashes resulting from pursuits based on
infractions: 116 crashes resulted from pursuits
based on felonies and 13 crashes from pursuits
based on misdemeanor offenses. However, after
several changes to the LAPD pursuit policy last
year, there has been a reduction in injury or death
resulting from those pursuits.<1>
In Florida, there has been a significant decrease
in injury and death involving police pursuits,
largely due to the implementation of a new policy
similar to this bill by the Florida Highway Patrol.
In 1995, prior to the implementation of their
policy change, they experienced 23 deaths related
to peace officer pursuits. In 1999 and 2000 they
---------------------
<1> Los Angeles Times, June 5, 2002, Section: California
Metro; Part 2; Page 3 "Los Angeles; Explanation for Fatal
Chase Offered; LAPD: Officers were warning pedestrians of
danger, officials said of the pursuit in which a girl died.
Police panel meets to review policies."
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had 11 deaths.<2> A spokesman at the Florida
Highway Patrol said its officers were reluctant to
make changes, especially changes that appeared too
restrictive. As the new policy was implemented,
the patrol officers realized its benefits and now
believe it was the right direction to take in order
to protect the community.
3. Revised immunity would be conditioned upon adoption of
and adherence to policy meeting specified minimum
guidelines and procedures
Under existing law, in order for an agency to have
immunity from civil liability arising from third-party
injury, death or property damage occurring as a result of
a police pursuit, the agency must adopt a policy on peace
vehicle pursuits. However, case law (Kishida v. State of
California (1991) 229 Cal.App.3d 329) does not require
implementation of the policy or adherence to it as a
condition of applying the immunity. Nor does existing
law set any minimum standards for the policy.
This bill would establish minimum guidelines and
procedures for peace officer pursuits. (See Comment 4.)
Further, SB 1403 would provide that a public agency (or
special district) must adopt and implement, and its law
enforcement officers must adhere to, a police vehicle
pursuit policy that meets the specified guidelines as a
condition of obtaining an immunity from liability for
injury or death caused to innocent third parties by a
suspect fleeing a police vehicle pursuit.
In addition, the bill would narrow a peace officer's
current broad immunity from any liability arising from
the operation of a police vehicle during a police pursuit
and would instead provide an immunity for police pursuit
operations if the peace officer was acting within the
scope of his or her employment, and the action was not
performed in bad faith or in a grossly negligent manner.
------------------------
<2> United States Department of Transportation, National
Highway Traffic Safety Administration, 2001 Fatality
Analysis Reporting System at
http://www.pursuitwatch.org/stats/NHTSA.html .
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a. Arguments in support: measure is needed to save
lives
The author asserts that the Priano tragedy is, sadly,
a too-often-repeated story. He notes that many
similar tragedies have been reported regularly in the
news headlines, such as:
the four innocent deaths in Stockton in
2001 when a fleeing stolen car suspect ran them
down in a school zone;
the death of a 17-year old and her loss
of her unborn baby when the car she was riding in
was hit by a stolen car suspect fleeing a police
car;
the crippling of Henry and Anna Polivada,
who survived the Holocaust only to be severely
injured by a motorist fleeing after being stopped
for a registration infraction;
the killing of Charlotte Lenga, another
Holocaust survivor, who could not survive the
collision caused by a fleeing suspect; and
Hoa Nguyen who was killed on the grounds
of his high school parking lot by a suspect in a
stolen van fleeing the police.
The author asserts that current law has resulted in
numerous innocent lives being lost or destroyed
unnecessarily. Noting that the most common offense
triggering pursuits statewide from 1995 to 2000 was
speeding, linked to 15% of all chases, followed by car
theft (11%), reckless driving (4%), drunk driving
(4%), and failing to stop at a stop sign (3%), he
asserts that the current broad discretion giving to
public agencies and their employees have failed to
strike an appropriate balance between the need to
apprehend law violators and the need to recognize and
protect the safety of the public during a police
vehicle pursuit. He writes:
In the tragedies identified above, current law
does not define clear safety standards for police
pursuits. . . . The flexibility that enforcement
agencies currently experience in creating their
own guidelines often results in inconsistent
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pursuit standards which do little to insure public
safety, and must be balanced with the need to
protect the public. It is generally understood
and recognized that the unintentional consequences
that do result in injury or death is not what law
enforcement seeks to have as a result of their
pursuits. But because these incidences
inevitability occur, it is for the public's safety
that minimum recognizable standards be put in
place.
Kristie's Bill proactively addresses this issue
while incorporating police powers to continue to
overtake, intercept and apprehend law violators.
The bill, modeled after the Florida Highway Patrol
pursuit policy, establishes safety standards that
will help minimize the public's risk relating to
police officer pursuits. . . .
Kristie's Bill will help make roadways safer for
all Californians. Kristie's Bill will save lives.
(Emphasis added.)
b. Opposition from public agencies and peace officer
groups
Opponents, public agencies with police departments and
numerous peace officer organizations, opposed SB 1866
(and are expected to oppose SB 1403) on two grounds:
1) loss of the current broad immunity for peace
officers and their employing agency; and 2) they
believe the proposed minimum guidelines and procedures
for police vehicle pursuits are overly restrictive and
contrary to good police policy.
As to the first basis of opposition, opponents
asserted that SB 1866 will have the likely effect of
precipitating litigation on virtually every pursuit
resulting in injury to a third person, since the
question could always be raised as to whether the
officer was in total compliance with the policy.
Peace officer organizations particularly object to
removing the peace officer's current absolute
immunity, arguing that the fear of potential personal
liability could hamper an officer's use of his or her
best judgment, and result in less vigorous law
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enforcement efforts to the detriment of public safety.
Proponents responded that SB 1866 protects a peace
officer from unwarranted liability. As long as the
peace officer was acting within the scope of his or
her employment and the action was not grossly
negligent or taken in bad faith, the officer would not
be subject to liability. Further, the officer's
failure to strictly adhere to all provisions of a
written policy would not, in and of itself, be
evidence of bad faith or gross negligence. If
necessary, the proponents indicate that they are
willing to consider the idea of requiring a "special
finding" before a peace officer could be held liable
for bad faith or gross negligence in a vehicle pursuit
that causes injury or death to an innocent third
party.
Opponents also argued that SB 1866 would effectively
make public agencies civilly liable for deaths or
injuries caused by a fleeing suspect, and would
effectively compromise their peace officers' ability
to protect the communities they serve. While
opponents express compassion for the pain of innocent
victims, they assert that the better solution is to
establish a statewide risk pool that would provide
victims compensation to those injured by fleeing
suspects.
Opponents also argued that strengthening penalties for
fleeing from a peace officer would have greater impact
on reducing the likelihood of suspects who flee, and
would correspondingly reduce the number of police
chases.
Regarding the second basis of opposition, Comment 4
details the proposed minimum guidelines and
procedures, and the opponents' objections to them. In
general, opponents argued that the proposed guidelines
and procedures are overly restrictive and fail to
allow for needed flexibility in the split second
decision-making in police pursuits. In opposition,
the Attorney General's office argued that "under this
bill peace officers will fail to pursue criminals
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because of the worry of potential liability for not
following the very detailed procedures [of SB 1866].
The public's safety could potentially be at risk if
officers fail to conduct these pursuits."
c) Similar narrower legislation heard and approved
last year
Last year, this Committee heard and approved SB 219
(Romero) which proposed to require that an agency must
implement and the officer follow a pursuit policy
before immunity attaches. As in SB 219 (Romero), SB
1403 would provide that an agency only has immunity
from liability if the agency adopts and implements a
pursuit policy in accordance with the guidelines and
the officer, acting within the scope of his or her
employment, adheres to the guidelines.
Also, like SB 219, SB 1403 would provide that its
provisions do not allow any lawsuit for damages
against the peace officer or public agency by the
driver of the vehicle pursued or his or her
accomplice.
However, SB 219 is narrower in other aspects. For
instance, that bill did not propose minimum statewide
standards and procedures for police vehicle pursuits.
Nor did it affect the immunity granted to peace
officers.
SB 219 is currently on the inactive file on the
Assembly Floor after failing passage and having
reconsideration granted in September of 2003.
4. Proposed minimum guidelines and procedures for police
vehicle pursuit
The bill would establish minimum guidelines and
procedures for police vehicle pursuits, as detailed
below, that a public agency must adopt and implement, and
its peace officers must adhere to, as a condition of
obtaining the liability immunity. The author notes that
these guidelines are modeled after policies in Florida
that have operated to reduce injuries and deaths to
innocent third parties from police vehicle pursuits
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without having any known negative effects.
Proponents assert that standards for police pursuits are
necessary to emphasize the importance of protecting
innocent lives and public safety whenever an officer
considers whether or not to undertake a police pursuit.
Under current law, the experience of law enforcement's
exercise of its apparent unbridled discretion to pursue
fleeing suspects has left an unacceptable wake of
needless deaths and devastating injuries for far too many
families.
Opponents, however, argued that SB 1866's measures are so
prescriptive as to make it virtually impossible for law
enforcement agencies to comply.
a. Standards for pursuit
As presently proposed, SB 1403 would provide that a
peace officer may only pursue a vehicle if there is
"imminent peril." As noted in Comment 1, this
proposed standard is undefined and may well be
modified.
SB 1403 would also provide that a peace officer may
not pursue a motor vehicle under any of the following
specified circumstances: the peace officer is carrying
a prisoner or any other person who is not an
authorized ride-along; the peace officer is on a call
that should take precedence; a supervisor advises the
peace officer not to pursue; the peace officer
initiates or participates in the pursuit without
having on an approved forward-facing red light or
siren; and the pursued vehicle does not represent an
imminent peril from other than the traffic condition
being created by the pursued vehicle as it flees.
Finally, the bill would also specify that the
initiation of a motor vehicle pursuit does not include
intercepting or overtaking. It begins when the
violator recognizes a peace officer is attempting to
stop him or her.
Opponent, the Los Angeles County Sheriffs Department,
contends that restricting police pursuits to cases of
imminent peril as narrowly defined would create such a
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high standard that it would be virtually impossible
for an officer to articulate or justify his or her
decision to pursue a serious or dangerous fleeing
suspect. Since the mere possibility of injury or loss
of life is not sufficient, and given the difficulty of
foretelling when an immediate injury or loss of life
is about to occur, opponents contend that few if any
police pursuits can be initiated without exposing the
public agency to potential civil liability.
Opponents also argue that the bill's provision that
the suspect's commission of a traffic infraction alone
does not qualify as imminent peril [Section 2833(b)]
is too restrictive, and assert that many serious and
violent offenders are often caught as a result of a
simple traffic stop. Opponents also contend that
proposed Section 2833(b) is not reflective of reality
because pursuits that start with a traffic infraction
often reveal that the offender is a wanted felon or is
a person committing a felony unknown to the officer at
the time.
Lastly, opponents contended that SB 1866 was not clear
as to what would take precedence over a pursuit and
that the factors going into making that determination
would make a violation inevitable.
b. Guidelines for the vehicle pursuit
Under SB 1403, an officer starting or joining a
pursuit must notify their supervisor and must receive
authorization from the supervisor to continue or join
the pursuit. A peace officer may not discharge his or
her weapon while his or her car or the vehicle being
pursued is moving. Further, the officer shall not
attempt to stop a pursued vehicle by boxing in,
ramming or heading off, or driving parallel to the
vehicle unless authorized to do so by the supervisor
when the supervisor determines that action will lessen
the imminent peril of others.
Also, while in pursuit the officer must continuously
question whether the seriousness of the offense
committed or being committed justifies continuation of
the pursuit. The peace officer must also consider the
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need for enhanced safety in residential or school
areas, and must obey traffic signals until it is clear
that other vehicles have yielded the right of way.
Opponents contended that this latter provision
(proposed Section 2833.2(d)), is particularly
unworkable and would effectively give fleeing suspects
a "free pass to freedom."
In addition:
A motorcycle officer who starts a pursuit shall
stop it when a motor vehicle takes over.
Generally, no more than two vehicles should be
involved in a pursuit and any other vehicle may, if
authorized by a supervisor, trail the vehicle at
posted speed limits.
This bill would also provide that immediately upon
starting a pursuit the officer shall notify a
supervisor who shall then take command of the pursuit.
When allowing the pursuit to continue, the supervisor
shall consider the seriousness of the offense
committed, the danger to the peace officer and the
public, prevailing traffic conditions, pedestrian
traffic, speed of the vehicles involved and other
relevant factors. A supervisor may only allow a
pursuit to continue after weighing the risks against
the need to continue.
Opponents contend that the guidelines mandate
unrealistic and overly restrictive requirements
regarding when an officer can or cannot pursue safe
driving. "This will have a chilling effect on an
officer's discretion, as they will now question their
right to make a decision they deem necessary on a
case-by-case basis. As many of these decisions are
made in split seconds, such discretion is vitally
important," asserts PORAC (Peace Officers Research
Association of California.).
c. When a pursuit must end
The proposed guidelines would require a pursuit to be
discontinued when:
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There is a clear danger to the public or to the
pursuing peace officer when taking into
consideration all of the following factors: the
seriousness of the original offense and its
relationship to the continued risk to others; the
safety of the public in the area of the pursuit; the
volume of vehicle and pedestrian traffic; the
quality of road and weather conditions, speed of
other vehicles, time of day and location; the
quality of radio communications and capabilities of
the law enforcement motor vehicles involved.
The peace officer is unable to see the pursued
vehicle, or the distance between the pursued vehicle
and the peace officer is so great that further
pursuit is futile.
The suspect is identified and may be
apprehended at a later time.
The supervisor directs the peace officer to
terminate the pursuit.
d. General opposition to rigid approach by opponents who
believe current flexibility should be maintained
Opposing SB 1866, the Los Angeles Police
Protective League wrote:
We know our offices will always respond and
make instantaneous decisions in varied
situations. They make on the spot decisions
that may later be reviewed and evaluated on a
step-by-step basis. Last year . . . the
LAPPL's Board of Directors expressed the view
that "the difficulty, in large part, is that
how and where the pursuit goes is not based on
the actions of the officers, but instead on the
unpredictable actions of the suspect. The
decision to pursue is based on a balance of
danger in which officers quickly evaluate the
risk of pursuit versus letting the criminal
flee." Limiting the discretion of the officers
to pursue by imposing liability is a bad policy
choice and one which sends the wrong message.
(Emphasis added.)
Opponents contend that the proposed rigid guidelines
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would tie the hands of law enforcement, to the
detriment of public safety.
In support of SB 1866, the author responded that
experience as well as studies support his conclusion
that enactment of pursuit guidelines will save lives.
According to a 1997 study by the U.S. Department of
Justice on police pursuits, pursuit-related accidents
were found to occur more frequently in pursuits
involving felonies than nonfelonies. Similarly, the
risk of injuries increased with the number of pursuing
vehicles and when the chases occurred on surface
streets rather than on freeways and highways, or in
urban and suburban areas as contrasted with rural
areas.
e. Definitions
This bill would define the following terms for the
purposes of implementing the minimum guidelines for
peace officer pursuits:
"Boxing in" is a deliberate offensive tactic by two
or more pursuing motor vehicles to force a pursued
vehicle in a specific direction, or to force the
pursued vehicle to stop or reduce speed accomplished
by the pursuing motor vehicles while moving, the
maneuvering into a place in front of, behind or beside
the pursued vehicle.
"Collateral pursuit" is a deliberate offensive
tactic by one or more patrol motor vehicles driving on
roads or streets that parallel the road or street on
which the pursued vehicle is traveling.
"Intercepting" is the activation of emergency
lights or siren, or both, at the discretion of the
peace officer to make notification of a peace
officer's motor vehicle presence and to cause the
violator to stop as quickly as possible.
"Overtaking" is the active attempt by a peace
officer to catch up to and stop a traffic violator
before there is recognition by the violator that a
peace officer is attempting to stop the violator.
"Paralleling" is a deliberative offensive tactic by
one or more patrol motor vehicles to drive alongside
the pursued vehicle that is in motion.
"Pursuit" or "motor vehicle pursuit" is an active
SB 1403 (Aanestad)
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attempt by a peace officer while operating a motor
vehicle, to apprehend a suspect who is also operating
a motor vehicle, while the suspect is trying to avoid
capture by using high speed driving or other evasive
tactics, including, but not limited to, driving off a
highway, making a sudden or unexpected movement, or
driving on the wrong side of the roadway.
"Ramming" is a deliberate act by the driver of a
vehicle to forcibly strike another vehicle in an
attempt to stop or disable the other vehicle.
5. Measure may accurately reflect original intent of 1987
legislation that created the conditional immunity, in
requiring adherence to adopted policy
Vehicle Code Section 17004.7 was added in 1987 by AB 1912
(Stirling), Chapter 1205, Statutes of 1987. It was one
of nine intertwined bills, each contingent upon the
passage of the other eight, that constituted the public
entity tort liability reform package that was jointly
sponsored by the Attorney General, the League of
California Cities, the County Supervisors Association and
the California Trial Lawyers Association (now Consumer
Attorneys of California).
One of the other bills in the package was SB 1598
(Presley), Ch. 1207, Statutes of 1987, which overturned
two Supreme Court cases [Petersen v. City of Long Beach
(1979) 24 Cal.3d. 238; Clemente v. State of California
(1985) 40 Cal.3d 202)] that held that a public employee's
violation of the employer's policy manual or guideline
constituted evidence of negligence per se. SB 1598
provided that a rule, policy, manual, or guideline of a
state or local governmental agency setting forth
standards of conduct for its employees shall not be
considered a statute, ordinance, or regulation within the
meaning of Evidence Code Section 669 (the negligence per
se law) unless the rule has been formally adopted as a
statute or as an ordinance of a local governmental
entity.
The League of California Cities, a co-sponsor of the
measure, stated that the Supreme Court cases "prompted
governmental entities, particularly police departments,
to consider 'abolishing interdepartmental policy
documents that recommend ideal standards of behavior
SB 1403 (Aanestad)
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because of the fear that the standards, when collected in
a department policy manual, are considered regulations
and will subject the city to increased liability exposure
every time a peace officer does not follow the manual to
the letter . . . .'" (Analysis of SB 1598, Senate
Judiciary Committee, August 24, 1987.)
Under SB 1598, "a violation of a rule or manual regarding
a public employees' conduct would remain admissible as
evidence of the employee's negligence. However, it would
no longer give rise to a presumption of negligence."
(Ibid.)
In the context of the nine-bill intertwined package, AB
1912 sought to give public entities additional protection
from liability when their peace officers engaged in
vehicular pursuits so long as the public entity adopted a
written policy for those pursuits. The written policy
was desired by consumer advocates so that unbridled
discretion could not be exercised by overly anxious peace
officers resulting in needless injury to the general
public. Correspondingly, SB 1598 was enacted to protect
public entities from undue liability under the negligence
per se rules in the event an officer failed to follow the
policy. The interconnection of the two bills can be seen
in a comment to the Senate Judiciary Committee's August
24, 1987 analysis on AB 1912. Comment 4 on page 3
states, after describing the required provisions for the
written policy: "In any action brought against the public
entity, the issue of whether the adopted written policy
complied with these requirements would be a question of
law for the court to decide. SB 1598, one of the public
entity tort liability reform bills to be heard today
would provide that violations of such policies would not
be negligence per se." (Italics added.)
These past legislative materials evidence intent that any
adopted policy should be followed as a condition of the
immunity, but that a failure to follow the adopted policy
would not constitute negligence per se.
Another indication of this intent was legislation carried
by Senator Presley (the author of SB 1598) in 1992, SB
347, to require that the public agency adopt and
implement, rather than just adopt, and that its peace
officers follow, that written policy in order for the
SB 1403 (Aanestad)
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immunity to apply. SB 347 was intended to correct a
court of appeals decision which held that it was
sufficient for the immunity if the public agency adopted
a pursuit policy; the court ruled that the statute did
not require implementation or adherence to the policy as
a condition of the immunity. (Kishida v. State of
California (1991) 229 Cal. App.3d 329, 355. See also
Comment 8.)
SB 347 passed the Assembly 70 - 0, passed the Senate 36 -
0 on a concurrence vote, but was vetoed by then Governor
Wilson.
In context, SB 1403 would not revert the law to its state
prior to 1987, when under Peterson and Clemente public
agencies were held liable under a negligence per se
standard whenever a police pursuit in violation of policy
resulted in an injury or death to a third party.
6. Proposed reporting changes
Existing law requires every state and local law
enforcement agency to report to the California Highway
Patrol (CHP) on a form approved by the department, all
vehicle pursuit data, which shall include, but not be
limited to, all of the following:
Whether any person involved in a pursuit or
subsequent arrest was injured, specifying the nature
of that injury.
The violations which caused the pursuit to be initiated.
The identity of the officers involved in the pursuit.
The means or methods used to stop the suspect being
pursued.
The charges filed by the court with the district
attorney.
This bill would also require the supervisor of the
vehicle pursuit to complete a written review and analysis
of the pursuit within 15 days of the pursuit, which would
be made public at that time. The supervisor's review
must at a minimum: describe the reason for the pursuit;
the conditions (traffic, speeds, number of cars and
officers involved) of the pursuit; whether the officers
conformed to the written policy, with any exceptions
SB 1403 (Aanestad)
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noted and the reasons for the occurrence; if any action
was taken against the pursued vehicle; if any laws were
violated; and the identify of any third party injured or
killed in the pursuit.
7. Proposed legislative findings
Motor vehicle pursuits of fleeing suspects present
a danger to the lives of the public and the peace
officers and suspects involved in the pursuits.
According to the statistics from the National
Highway Traffic Safety Administration (NHTSA),
California has consistently higher numbers for
fatalities in crashes involving peace officer
pursuits.
In 2001, NHTSA reported 365 fatalities nationwide
as a result of police vehicle pursuits. California
had the highest number of fatalities with 51 deaths,
accounting for nearly 15 percent of the nation's
total. Of those 51 fatalities, 24 were innocent
bystanders.
A primary function of all law enforcement agencies
is to protect the public against personal injury,
death, or property damage.
Peace officer pursuits involving motor vehicles
inherently present a risk to the public. A
responsibility of law enforcement is to ensure that
innocent third parties are reasonably shielded from
any risk emanating from these pursuits. It is also
necessary to assist peace officers in the safe
performance of their duties.
It is the intention of the Article created by this
bill to strictly regulate the manner in which a peace
officer motor vehicle pursuit is initiated, undertaken
and performed.
8. Case law interpreting statute hold that adoption of
compliant policy is sufficient for immunity
In Kishida v. State of California (1991) 229 Cal.App.3d
329, the Fourth District Court of Appeal interpreted
Vehicle Code Section 17004.7 and held that the statute
SB 1403 (Aanestad)
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does not require a public entity employing peace
officers, in order to obtain the immunity accorded by
statute, to prove that, during a particular chase, its
policy on safe pursuits was actually practiced by the
pursuing officer or officers. [Id., at p. 335.]
In arriving at its position, the Kishida court sought to
ascertain the legislative intent by looking at statements
made by co-sponsor League of California Cities and at
legislative materials prepared by the Assembly Office of
Research. It also looked at the words of the statute and
stated: "Nowhere does the statute require that the grant
of immunity be predicated on proof that the pursuing
officer followed the standards and the guidelines,
contained in the policy, during a given chase for which
immunity is sought. Had the Legislature intended that
the employer-entity prove in each instance that the
employee-officer followed the guidelines in order to
invoke the immunity, the statute would have said so."
[Id., at p. 338.] (As noted above, SB 347 sought to
abrogate the Kishida decision, but that measure was
vetoed by then Governor Wilson. It is also not known
whether the Kishida court considered the Senate Judiciary
Committee legislative materials noted above.)
Subsequent decisions have followed Kishida, up to and
including Nguyen, although not without reservation or a
plea to the Legislature to reconsider the statute. As
stated by the Nguyen court:
In so deciding this case, we wish to express our
displeasure with the current version of section
17004.7. As noted, one reason for extending
immunity to a public entity that adopts a
written policy on vehicle pursuits is to advance
a goal of public safety. But the law in its
current state simply grants a 'get out of
liability free card' to public entities that go
through the formality of adopting such a policy.
There is no requirement that the public entity
implement the policy through training or other
means. (Citations omitted.) Unfortunately, the
adoption of a policy which may never be
implemented is cold comfort to innocent
bystanders who get in the way of police pursuit
. . . We urge the Legislature to revisit this
SB 1403 (Aanestad)
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statute and seriously consider the balance
between public entity immunity and public
safety. The balance appears to have shifted too
far toward immunity and left public safety, as
well as compensation for innocent victims,
twisting in the wind. (103 Cal.App.4th at
1168-1169. Emphasis added).)
Support: Candi Fuller; Judith Fuller; Family of Kristie
Priano; PursuitWatch.org; Carol Burr; Arman Urun;
ACLU
Opposition:Association for Los Angeles Deputy Sheriffs;
Office of the Attorney General; Riverside
Sheriff's Association; County Sheriff's
Department of Contra Costa, Imperial, Sacramento,
Sierra, San Bernardino, and Yolo; California
Association of Joint Powers Authorities;
California State Sheriffs' Association; Los
Angeles County Sheriff's Department; Los Angeles
Police Protective League; California Peace
Officers' Association; California Police Chiefs'
Association; San Diego County Sheriff's
Department; Peace Officers Research Association
of California; Department of California Highway
Patrol; League of California Cities; County
Supervisors Association of California; Civil
Justice Association of California
HISTORY
Source: Senator Aanestad
Related Pending Legislation: SB 219 (Romero) - On Assembly
Inactive File
SB 1866 (Aanestad) - Failed Passage
in this
Committee, Reconsideration granted
Prior Legislation: SB 347 (1992, Presley) - Vetoed
AB 1912 (Sterling), Chapter 1205,
Stats. of 1987
Prior Vote: Senate Public Safety Committee: (Ayes 4 ,
SB 1403 (Aanestad)
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Noes 1)
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