Public interest in and attention to police pursuits in Louisiana has perhaps never been so high. The deaths of several innocent bystanders have been front page headlines for months on end in the Baton Rouge area. Understandably, the drumbeats of reform and accountability are growing louder and stronger. A Louisiana state representative has proposed HB543, which calls for an expansive overhaul to police pursuit law and increases exposure to civil liability for law enforcement agencies. This raises the questions of whether or not the current law is ineffective, and will the proposed law actually provide for safer police pursuits?
The current law that governs all emergency vehicle operations is La. R.S. 32:24. Regarding police pursuits specifically, the law provides that when in pursuit of an actual or suspected violator, a police officer may: (1) proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation; (2) exceed the maximum speed limits so long as he does not endanger life or property; and (3) disregard regulations governing the direction of movement or turning in specified directions. The officer must also make use of audible or visual signals that are sufficient to warn motorists of the emergency vehicle’s approach.
In addition to allowing officers to disobey normal traffic laws, the statute provides for a “qualified immunity” or limitation of civil liability for damages that may occur from these activities. The law explicitly states that it does not relieve the emergency driver from the duty to drive with due regard for the safety of all persons, nor does it protect the driver from the consequences of his reckless disregard for the safety of others. The application of this provision long provided for much confusion by the state’s district courts.
In the case of Lenard v. Dilley, the Louisiana Supreme Court weighed in to clarify the issue, holding that if the emergency driver adheres to each and every element of La. R.S. 32:24, he will be civilly liable only if the conduct giving rise to the injury amounts to gross negligence. Gross negligence is defined as the want of even slight care and diligence; it is the want of that diligence which even careless men are accustomed to exercise. However, if the driver fails to adhere to any one of the elements, he will be liable if he was merely ordinarily negligent. Ordinary negligence hinges on whether the actor knew or should have known that their actions could more probably than not cause injury to another, and is a lower standard than gross negligence. In fact, this is the same standard that anyone is held to for causing a motor vehicle accident. Thus, no special treatment is afforded to law enforcement if the plaintiff can show that the officer did not follow every single element of La. R.S. 32:24.
Admittedly, the language of the current law is vague, requiring actions “as may be necessary for safe operation” and “so long as [the driver] does not endanger life or property”. Whether the driver complied with these requirements is a question of fact--meaning the judge or jury deciding the case must make this decision on a case-by-cases basis as the facts of each case are different. Both parties ordinarily resort to expert testimony regarding police policy and procedure, training, and best practices to address the gross negligence standard and explain the application of the law to pursuits. A battle of expert opinions is quite common in all civil litigation, not just those involving police matters.
HB543 lays out extensive protocols regarding nearly every aspect of police pursuits, i.e., criteria to initiate and terminate, communication requirements, roadblocks, and intervention techniques. The crux of the text requires a balancing between the need to catch a particular fleeing suspect and the danger to others. Notably, the proposed law is very similar to language that is commonly found in many modern pursuit policies and training. In fact, as a subject matter expert in this field, the author finds that most of the proposed requirements already would normally be relied upon and applied by an expert in evaluating whether the officer complied with the current law or best practices.
The significant changes of liability are found in subsection “I”, which states: “(1) If a peace officer or employee fails to comply with the provisions of this Section, a law enforcement agency, department, or office shall be held strictly liable for damages caused by its peace officers or employees while in pursuit of a vehicle, and such pursuit results in serious bodily injury or death. (2) In addition to general and special damages, a prevailing plaintiff may be awarded court costs, reasonable attorney fees, and exemplary damages.”
The proposed law would add strict liability and eliminate the gross and ordinary negligence standards that currently exist, which require an evaluation of the officer’s knowledge, care, and diligence. Strict liability was almost completely removed from Louisiana law in 1996 and essentially holds the actor liable for damages arising from their actions, regardless of whether or not they knew or should have known of the danger posed by the activity. Under the new law, a violation of any one of the extensive elements would open the door for liability merely because an injury arose, despite the fact that the pursuit appeared safe to an ordinary and reasonable officer or there was no reason to know that it could foreseeably lead to an injury.
This raises a legal and policy question that currently exists and does not seem to be clarified in the proposed law. Should a police agency be liable for a suspect’s actions that result in a third-party injury no matter the circumstances of a pursuit? Statistically, the majority of pursuit-related accidents arise from the fleeing suspect’s vehicle crashing, and are not caused by the officer’s vehicle. Even with La. R.S. 32:24 in place, agencies can be held liable if there a causal connection of their initiation or continued pursuit of a suspect that causes an injury to a third party.
The vast majority of reported civil cases swing in law enforcement’s favor because the sole cause of the injury is the suspect’s own actions. First Circuit Court of Appeal has previously stated, “it was the decision of [the suspect] to flee law enforcement officers in an erratic and dangerous fashion that was the sole cause of this accident. [The suspect] placed himself, the public, and all involved law enforcement personnel in immediate danger by driving dangerously at high rates of speed without lights and without a license. We specifically find no evidence to support the plaintiffs' allegations that the troopers were negligent in following their own pursuit policies and procedures in this quick, high-speed pursuit. Simply put, the LSP troopers were not ‘grossly’ or ‘ordinarily’ negligent; they acted reasonably and did their job as they were trained to do in a highly dangerous situation.” See Bristol v. Gonzales Police Department.
To this point, the language of the proposed law contains requirements to initiate and to terminate pursuits. Presumably, even if the suspect causes a crash leading to death or serious bodily injury to another, the agency is strictly liable for those damages if the officer failed to follow those initiation or termination guidelines. The proposed law states: “A pursuit shall not begin, nor shall it be continued, when the need for immediate apprehension is very low and the totality of risk to public safety is very high” and “[t]he pursuit shall be terminated when the totality of the risk to the safety of the public clearly outweighs the need for immediate apprehension.” Seemingly, to apply this standard requires careful analysis of the facts of each case and the officer’s knowledge, care, and diligence under the specific circumstances. If this is correct, from a legal standpoint, the law would in fact call for a negligence analysis, and a standard of strict liability becomes inapplicable. This nuance could turn out to be a fatal flaw in the proposed law.
Ordinarily, in a civil suit the plaintiff can seek special and general damages from the defendant. This would include calculable losses, such as medical bills and lost wages, and those damages that are imprecise in nature, such as pain and suffering, mental anguish, loss of enjoyment of life, etc. If the plaintiff prevails in trial, the court may award certain taxable costs, such as filing fees, the costs of discovery, and some expenses associated with trial. With rare exception does Louisiana law provide for attorney fees and “exemplary” damages, both of which are proposed in HB543.
Exemplary damages are sometimes called punitive damages and they need not be based on reasonable harms and losses, but are designed to deter future misconduct by punishing the bad actor beyond the scope of traditional damages. In federal civil rights cases, punitive damages sometimes reach multi-million dollars even when the actual injury is rather small in comparison. A final nuance to HB543 is that it would be retroactive—meaning it would apply to cases already in existence for injuries that occurred in the past.
Pursuit policy, procedure, and training vary throughout Louisiana. There are certainly best practices and nationally accepted protocols, but city-to-city officers may be trained and held to different standards and requirements. HB543 would level the playing field and provide all officers in the state with the same rules. The rules proposed in HB543 mostly include what the author would identify as generally accepted police practices, which are already often addressed when experts present evidence to determine if La. R.S. 32:24 was followed. If they were not, then officers and agencies are just as liable as any other citizen for their ordinary negligence and the damages suffered.
More significant, HB543 adds strict liability and the increased financial exposure of attorney fees and punitive damages. As written, the strict liability standard is not likely to survive legislative scrutiny, in the author’s opinion. However, the possibility of expanding losses to include attorney fees and awards made to punish bad actors could drastically affect law enforcement’s willingness to take certain risks when deciding to pursue—even the most severe and dangerous violators. Of course, for every action, there is a counter action, and the emboldening of criminals to flee instead of being apprehended is certainly a foreseeable consequence.