No one is above the law. Police and other government employees are not allowed to run stop signs, speed, and to crash into the cars of innocent bystanders. They are not allowed to violate the traffic or other laws even in a high speed chase of a subject. This kind of conduct violates the law and usually violates their own departmental policy. If they do drive or behave in such a manner, the city or municipality or state can be liable for damages.
A 1998 study by the National Highway Traffic Safety Administration indicated that police pursuits killed 314 people that year: 2 police officers, 198 fleeing suspects, and 114 innocent bystanders. See also, https://crashstats.nhtsa.dot.gov/#/. See also, National Center for Statistics and Analysis, “Fatalities and Motor Vehicle Traffic Crashes Involving Police in Pursuit” (2006). From 1994-1998, 1 in 100 pursuits ended fatally, and innocent bystanders comprise 42% of total pursuit related injuries and deaths. See, John Hill, “High Speed Police Pursuits: Dangers, Dynamics, and Risk Reduction,” 71 FBI Law Enforcement Bulletin 14 (2002), available at http://www.fbi.gov/publicatons/leb/2002/july2002/july02leb.htm. See also, pursuitwatch.org, http://www.pursuitwatch.org/news.htm; and Anna M. Krstulic, “America’s Most Shocking Standard: When Innocent Parties Are Injured or Killed in High-Speed Pursuits, What Police Conduct Sufficiently “Shocks the Conscience” to Allow Recovery?” 47 Washburn Law Journal, 785 (2008).
Negligence Action in State Court v. Civil Rights Action in Federal Court
There are two ways to approach actions against police officers and the municipalities or other governmental entities which employ them. First, there is a negligence action in state courts. Second, there is an action for violation of civil rights under 42 U.S.C §1983 brought in federal court.
In state court negligence actions, one of the issues is whether the decision by the police to pursue a suspect is the proximate cause of an innocent bystander’s injuries. Proximate cause is considered to be a question of fact in the majority of jurisdictions if the plaintiff alleges negligence on the part of the police. See, “Cooling the Hot Pursuit: Toward a Categorical Approach”, 73 Indiana Law Journal: Issue 4, Article 6, Footnote 84. See also City of Pinellas Park v. Brown, 604 So.2d. 1222 (Fla. 1992) (holding that the decision as to whether a high speed police chase caused the accident is a question of fact).
A substantial and emerging majority of states in the United States hold that a jury can decide whether police conduct is a proximate cause of injury to innocent third parties if there is evidence of negligence.
The second issue in such cases is the statutory limit to any recovery. In Florida, Florida Statute §768.28 provides a “waiver of sovereign immunity” in tort actions. That statute provides in relevant part as follows:
Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.
In other words, if the state employee is negligent in causing accident and injury, the state or its agency or municipality can be liable. The limits of such liability are found in Florida Statue §768.28 (5). In that subsection, the state or its subdivisions, that is the city or county, cannot be liable to pay any claim or judgment which exceeds $200,000 for any claim or judgment or $300,000 per incident.
If there is a judgment for an amount above the limits or if the state, county, or city agrees to a settlement above the limits, the plaintiff can ask the legislature to pay the difference. That is, the plaintiff then can take the agreed upon amount or judgment and ask the legislature to pass a “claims bills” for the difference.
The other method of pursuing negligent or intentional acts by police officers is by bringing a lawsuit in federal court for violation of a federal statute, 42 U.S.C. §1983. That federal statute provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
42 U.S.C. §1983 (1994). One commentator has described actions under this federal statute as “the predominant vehicle for civil suits filed in federal court alleging police misconduct.” See, Geoffrey P. Alpert and Patrick R. Anderson, “The Most Deadly Force: Police Pursuits”, 3 Justice Quarterly, No. 1 (1986). See also, Travis N. Jensen, “Cooling the Hot Pursuit: Toward a Categorical Approach”, 73 Indiana Law Journal: Issue 4 (2009).
The issues in §1983 actions include whether the plaintiff must prove that the conduct on behalf of the officers “shocks the conscience,” is recklessness, or is gross negligence. The “shock the conscience” standard was first introduced by the Supreme Court in Rochin v. California, 342 U.S. 165, 172-73 (1952). Recklessness has been discussed in Prosser and Keeton in The Law of Torts, §34 at 212-214 (5th edition 1984). Gross negligence also has been discussed by Prosser and Keeton, §34 at 211-12.
However, the Supreme Court has held that §1983 “contains no state of mind requirement independent of that necessary to state a violation of the underlying constitutional right.” Daniels v. Williams, 474 U.S. 327, 330 (1986). The Supreme Court in County of Sacramento v. Lewis, 118 S.CT. 1708 ( ) compelled that the more stringent “shocks the conscience” standard must be met to give rise to liability under the 14th Amendment to the United States Constitution in cases involving police pursuit which causes injury.
Police Department Policies
Police Departments have various policies in regard to high speed chase. The departments recognize that the police must make split second decisions and balancing tests. Some departments have attempted to articulate policies regarding high speed pursuit. See, e.g., Geoffrey P. Alpert & Roger G. Dunham “Policing Hot Pursuits: The Discovery of Aleatory Elements,” 80 J. Crim. L. & Criminology 521 (1989). These policies usually fall under one of three models as follows:
- (A) Judgmental: This allows officers to make all major decisions relating to initiation, tactics, and termination;
- (B) Restrictive: This is certain restrictions on officers judgments and decisions;
- (C) Discouragement: This model severely cautions or discourages any pursuit, except in the most extreme situations.
See, Travis N. Jensen “Cooling the Hot Pursuit: Toward a Categorical Approach”, 73 Indiana Law Journal: Issue 4, Footnote 102-106.
The consequences of crashes caused by these high speed chases frequently is the death of innocent bystanders. The damages for such a death in Florida is governed by the Florida Wrongful Death Act, Florida Statute Section 768.16 to 768.26. That Act provides for economic damages and non economic damages. The economic damages include:
- Funeral expenses;
- Medical expenses of the decedent incurred after the accident and before the death if those expenses were caused by the accident;
- Loss of net accumulations (what the decedent would have left if he or she had lived his or her normal life expectancy);
Loss of support, past (from the date of the accident to now) and future (from now through the date on which the Decedent likely would have contributed). Calculations are based on earnings of the decedent in the year prior to her death. No growth in this income level is assumed over the past time period. A personal consumption allowance is deducted from the amount available for support to the surviving family members based on national survey data on this family income and family configuration. Taxes are deducted from decedent’s earnings. (See, Occupational Employment Statistics; United States Department of Labor, Bureau of Labor Statistics, 2009 Edition).
Replacement value of household services, past and future; (Calculations are based on a loss of per day and valued at per hour which was the average hourly wage in the services industry at the time of the death. (Source: Employment and Earnings, United States Department of Labor, Bureau of Labor Statistics, Table B-2 and Local Area Survey.)
The non economic damages in the Florida Wrongful Death Act include:
Pain and suffering, loss of companionship, society, and affection to each of the surviving children for the remaining life expectancy which the decedent would have lived.
Pre-death pain and suffering of the decedent.
Hickey Law Firm, P.A. obtained recovery in 2012 under the statutory limit for the death of a woman whose car was struck by a speeding police cruiser on February 28, 2009. The recovery was for $150,000 from the underlying statutory allowed amount of $200,000 directly from Miami-Dade County Florida under the limits imposed by Florida Statute Section 768.28. We went to the Florida legislature and obtained another $1,010,000 in a claims bill.
Here is a summary of that case:
STATEMENT OF CLAIM
LOPEZ, GUZMAN – SENATE BILL 16
CASE NO. 11-4084
On February 28, 2009, a Miami-Dade Police Officer, negligently and recklessly operating his police vehicle causing a collision resulting in the death of Anayency Velasquez. The officer drove his police vehicle in violation of written department policies, and in violation of the law. The officer was engaged in a high speed chase, traveling at extremely high rates of speed in a residential section, for little or no apparent reason, and failed to stop at a stop sign. Physical evidence indicated that the police vehicle was headed westbound on NW 112th Street and Ana-Yency Velasquez’s vehicle was headed southbound on NW 11th Avenue. The police vehicle struck Ms. Velasquez’s vehicle on the driver’s side at the driver’s door. Ms. Velasquez’s vehicle was deflected to the southwest where it went through the fence of a residence and then into a bedroom wall where it came to rest after creating a hole in the wall. The police vehicle was also deflected to the southwest coming to rest just outside the fence of the same residence struck by Ms. Velasquez’s vehicle. (State Attorney’s Interoffice Memorandum dated July 8, 2009, Tab 3 herein). Pieces of Ms. Velasquez’s vehicle were thrown onto the roof of the house.
The State Attorney prosecuting the Police Officer, determined that the officer ran the stop sign and crashed into the victim. The State Attorney also determined that the victim was not at fault, that the victim had right of way, and that she had no stop sign or traffic lights in the direction in which she was traveling. (State Attorney memo dated 12/17/2009). Further, the victim, Ana-Yency Velasquez, died only as a result of injuries from the crash, and not as a result of anything else. The State Attorney also determined through statement of the officer who was a passenger in the vehicle that that “no emergency equipment was activated.” (The driving officer refused to provide a statement).
Lead detective Christopher Cuccaro reconstructed the collision, using accepted physics formulae. He determined that Ms. Velasquez’s vehicle was traveling at a minimum of 31 MPH at the time of the collision, and that the driving officer’s vehicle was traveling at a minimum of 32 MPH at collision. The amount of crush damage and the deflection of the frame of the police vehicle are indicative of two vehicles traveling between 31-40 MPH at collision, and are therefore consistent with Det. Cuccaro’s reconstruction. It is the conclusion of the investigators that Officer Frank Rivera did not stop at the stop sign. (State Attorney’s Interoffice Memorandum dated July 8, 2009, Tab 3 herein).
The officer who drove the police cruiser violated the following Florida Statute sections under Chapter 316 include:
- (1) §316.027 Crash involving death or personal injuries;
- (2) §316.062 Duty to give information and render aid;
- (3) §316.155(1) and (2) When signal required;
- (4) §316.156 Signals by hand and arm or signal lamps;
- (5) §316.183(1) Unlawful speed (4) Driving at appropriate reduced speed when (a) approaching and crossing an intersection; (b) approaching and going around a corner; (e) any special hazard exists with respect to pedestrians;
- (6) §316.185 Special Hazards (…and speed shall be decreased as may be necessary to avoid colliding with any person…);
- (7) §316.187 Establishment of state speed zones;
- (8) §316.189 Establishment of municipal and count speed zones;
- (9) §316.192 Reckless driving;
- (10) §316.1923 Aggressive driving;
- (11) §316.1925 Careless driving;
- (12) §316.1925 Driving under the influence;
- (13) §316.123 Vehicle entering stop or yield intersection
The officer who drove the vehicle also violated the civil rights of his victim, Anayency Velasquez, and was also in violation of 28 U.S.C. §1983. It is also a violation of the civil rights and was gross negligence, if not criminal mischief and reckless disregard for the life of the people on the road at that time. The photos of the scene of the accident, position of the police cruiser in the yard adjacent to the point of collision, and crashing into the walls of an adjacent house established that the rate of speed was extremely high.
Although Fla. Stat. 316.072(5)(b)(2) may provide an officer in pursuit of an actual or suspected violator of the law an affirmative/qualified defense from civil prosecution, that defense is qualified. In the case at hand, the qualified immunity is effectively removed because of evidence of this Defendant’s failure to use due care in the execution of his duty. Franklin v. Shuler et. Al. v. Dade County, 230 So. 2d 730, 736 (Fla. 3DCA 1970). Writ of Cert. Denied.
The Miami-Dade Police Department Requirements for pursuit also state that sirens and lights be used in pursuit. A police officer who pursues a suspected violator at a rate of speed, without proper warning lights and sirens is negligent in his conduct. Franklin v. Dade County v. Shuler v. Dade County, 230 So. 2d 730, 731 (Fla. 3d DCA 1970).
The Courts have time and time again made it clear that Officers must use the very equipment that they have to minimize the risk of litigation. Fisher v. Miami-Dade County, 883 So. 2d 335 (Fla. 3DCA 2004) see also Kaiser v. Kolb, 541 So. 2d 732, 735 (Fla. 1989).
The highlights of the actions of the officer are contained in the State Attorney’s Close Out Memo. The memo states:
- On 28 February 2009, [the officer] drove his marked police unit through an intersection, failed to obey the marked stop sign and ultimately slammed into a bystander’s vehicle…[the officer] (hereinafter “Defendant”) was on duty, in a marked unit and allegedly in pursuit of a phantom speeding vehicle. The Defendant did not engage his lights or sirens. The location of the collision was residential, dark, and the event occurred at approximately 5:30 a.m. The medical examiner’s report attributed death to blunt force trauma.
- …the State of Florida should move forward citing the Defendant for the infraction of careless driving and running a stop sign…The State provided testimony from two traffic homicide investigators both of whom were proffered and accepted by the Court as experts in traffic homicide investigations and forensic accident reconstruction. Both witnesses testified regarding the scientific impossibility based on physics for the Defendant to have stopped at the stop sign. Both experts attributed fault to the Defendant.
- Additionally, Detective Cuccarro testified regarding the protocol for the Miami-Dade Police Department regarding the requirement that lights/sirens be used in pursuit. The State elicited testimony from the Medical Examiner Dr. Hutchins…That witness then testified regarding that blunt force trauma was the sole cause of the victim’s cause of death.
Photographs of the accident scene are included in this binder under Tab 6.
The Claims Bill for our client became law on March 29, 2012 when the Governor of the State of Florida signed a letter, a copy of which is copied below.