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August 10, 2011
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Lt. Dan Marcou Blue Knights
with Lt. Dan Marcou

A vehicle pursuit is actually an unlawful flight

United States Supreme Court Justice Anthony Kennedy recently stated that vehicular flight from a law enforcement officer invites, even demands, pursuit

In a recent court decision recognizing that the act of fleeing from an officer is a dangerous felony, Justice Anthony Kennedy stated, “Risk of violence is inherent to vehicle flight. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit.”

Truer words were never spoken by a Supreme Court Justice about suspects fleeing to avoid apprehension.

In all my years as a police officer, I have watched department policies and civil litigation pile the blame on officers when pursuits go bad — as if the pursuit was some sort of evil concoction contrived by a bored beat officer. The Honorable Justice Kennedy is absolutely correct, “Flight from a law enforcement officer invites, even demands, pursuit.”

Critically Flawed Solutions
In recent years, legislatures, courts, chiefs, and sheriffs have recognized police pursuits as dangerous. Meaning no disrespect to any of them, as someone who has engaged in more pursuits than I care to count I must quote Homer, “Duh…” (That was Homer Simpson, not the Greek poet).

In addressing the problem most have made the common error that many problem solvers make. They chose to address a symptom of the problem instead of the actual problem. The problem is not that of officers initiating pursuit. In the history of police pursuits no officer has ever initiated any pursuit. Suspects, who are bound by law to yield, initiate flight and officers, whose sworn duty it is to apprehend, follow. That flight “invites, even demands, pursuit.”

Absurd Policy
A fleeing suspect is much like a deranged man running through the community firing a weapon at random. Officers, recognizing the danger to the community pursue. Some policies order officers to immediately terminate all pursuits placing the safety of the community firmly into the hands of the suspect. I call these the “Don’t Care Policies.” These policies say, “We don’t care why the suspect is fleeing. We are afraid of the liability we may personally incur by allowing officers to follow the natural tendency in every police officer; that is to pursue someone who flees. We will place the public safety of the community into the hands of any unknown person, fleeing for any reason for in turn there will be no liability.”

Some policies I call the “Due Care Policies.” These allow officers to continue to pursue the deranged suspect as long as they feel he is dangerous enough to warrant pursuit and the officers pursue with “due care.” When the deranged suspect kills someone, or hurts himself, the officer that continued the pursuit is often held civilly — and even at times criminally — liable for the results.

It is absurd that fear of civil litigation has allowed intelligent law enforcement leaders to arrive at such vastly different approaches to pursuits nation-wide. What is even more tragic is that these cases ruin the careers of some of our best officers and bankrupt the communities they serve.

Immunity
It would behoove Chief’s and Sheriff’s to strike while the iron is hot. Chiefs and Sheriff’s organizations should take their political clout to their state legislators. With the recent decision in hand they should push for legislation making knowingly fleeing an officer a serious felony. They should push for civil and criminal immunity for officers and agencies, who choose to pursue the fleeing suspect. All responsibility for the flight should be legally on the shoulders of the person fleeing. At the very least laws should be penned preventing suspects from financially benefitting from their decision to flee.

In this time of tight budgets, legislators across the nation could save millions of dollars in litigation and simultaneously send a message of support to law enforcement officers. They just need to understand the truth in the words of Justice Kennedy and pass a law granting immunity to officers and their agencies from prosecution and civil litigation in vehicle pursuits.

There has always been a premise that this country that our system would rather see ten guilty men go free than to have one innocent man punished. Yet currently in many of these pursuits that end tragically the innocent officers doing their duty and the innocent people of the community they serve are not only punished, but punished beyond all reason.

There must be a change in the civil and legal paradigm. These dangerous situations are not “law enforcement pursuits,” but “felony flight.” To solve any problem, the problem statement must be correctly formulated. The problem is not that law enforcement pursuits are dangerous. The problem occurs when a suspect refuses to yield as they are legally bound to do, instead chooseing to initiate an unlawful flight.

A flight which “invites, even demands, pursuit.”


About the author

Lt. Dan Marcou retired as a highly decorated police lieutenant and SWAT Commander with 33 years of full time law enforcement experience. He is a nationally recognized police trainer in many police disciplines and is a Master Trainer in the State of Wisconsin. He has authored three novels The Calling: The Making of a Veteran Cop , S.W.A.T. Blue Knights in Black Armor, and Nobody's Heroes are all available at Barnes and Noble and Amazon.com. Visit his website and contact Dan Marcou





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