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As Published in Rhode Island Lawyers Weekly
On the night of February 19, 2004, a motorist operating a gold Taurus automobile was positively identified by a Providence police officer as a member of a local gang. The officer attempted to conduct a stop of the vehicle since he allegedly had reason to believe that the operator of the Taurus illegally possessed a firearm. Providence police activated their overhead lights. Once this occurred, however, the gold Taurus accelerated in attempt to elude police. The operator of the Gold Taurus was next observed to improperly drive around several vehicles (“left of center”), and through several red traffic lights. In his deposition, the Providence police officer described the maneuvers of the Gold Taurus as “reckless.” In a further effort to elude police, the operator was observed to shut his headlights while entering the highway and “swerving between cars.” Providence police immediately terminated their pursuit “based upon the fact that he [the operator] was on the highway now and his lights were off and I could see him from a distance swerving between cars, and to me, it wasn’t worth [chasing him] whether there was a gun in the car or not…because [the driver] was adamant on not stopping.”
Instead of continuing to chase the Taurus, Providence police issued a broadcast providing a brief description of the gold Taurus and the fact that that the driver (1) was in possession of a firearm; (2) had extinguished his headlights; and (3) was speeding en route to the Providence border. Providence police next proceeded to the west end of Providence “because this is the area where we know the subject to reside, for a chance he might come back into that area and we’ll deal with him then.”
The suspect’s Gold Taurus automobile soon left Providence and entered the area where neighboring police were patrolling. Owing to the broadcast from Providence, police began to chase the gold Taurus. Curiously, at his deposition, this same officer admitted that he “…didn’t know what [the operator] had done and why he was being pursued by Providence [police].”
After briefly observing the gold Taurus he broadcast to his dispatcher both the location of the vehicle and its registration number. A simple check of the registration by police would have positively identified the operator, although the registration was to another vehicle, not the Taurus. Before initiating his chase, police “observed the gold Taurus approach the intersection [and] then quickly cut across four lanes of travel” onto Route 10. The police officer activated his siren and overhead lights and accelerated after the Taurus. During this part of the chase, the officer was again able to visually obtain the suspect’s vehicle registration number. Audio tapes containing the transmissions that were broadcast by police on this night have been obtained. Despite repeated radio transmission requests from both his dispatcher and the “officer in charge”, that the pursuing officer provide information concerning his “speed and position”, this was never done.
When the officer was ultimately deposed and asked why he initiated pursuit of the Taurus he responded that “there was a weapon in the vehicle. Other than that, I didn’t know if he murdered someone.” He elaborated that “…I didn’t know what type of incident he [the suspect] had been involved in.” During the earliest stage of the chase the officer also personally observed the suspect extinguish the headlights of the Taurus.
It is uncontested that no weapon was ever witnessed or recovered by anyone. Indeed, the suspect was never charged with a weapons offense as a result of his conduct on this evening.
Early in the chase, the suspect took a hard turn at a high rate of speed and lost control of his vehicle such that it was cause to “wiped out” near a ramp to Route 95. At this juncture, the pursuing officer is overhead on broadcast tapes to exclaim that “this guy is going to fuc*ing kill somebody.” Notwithstanding these facts, at his deposition, the pursuing officer would not allow that (1) he was “chasing” the suspect or that (2) the suspect’s driving at this point was “reckless.” On the first point, the officer is careful to distinguish that he was instead “monitoring” the suspect’s vehicle. Indeed, when asked at deposition if he would agree that he was “chasing” the Taurus before it “wiped out”, the officer testified that “[a]gain I prefer to use the word ‘monitor’, for the fact that I think ‘chasing’—I would not phrase it that way.” Later, the officer takes pains to explain that by “monitoring” the defendant’s vehicle he is “not, per se, trying to [stop the vehicle]. I am allowing him to basically make a decision on his own, either to pull over, keep going. And if he decides to keep going, I stay with him.” Regarding his observation of the suspect’s driving behavior, the officer has testified that “I think it could have rose [sic] to ‘reckless’ if there was more traffic [on the roadway]. But due to the fact he had four lanes and the traffic that night was relatively nothing, he had room to negotiate. If you are counting all of the lanes, you got three travel lanes and a breakdown lane, you have four lanes of travel. I think he had the room to operate. I don’t believe it was a reckless manner at that point, in my opinion.” The fact that the suspect was operating his vehicle at a high rate of speed, weaving in between cars and operating his vehicle without headlights illuminated is of little import to the officer who insists that such conduct, in light of prevailing traffic conditions, was not “reckless.”
For example, the following exchange occurred at the officer’s deposition:
Q. “So you had no increased concern about the safety of the motoring public when he wiped out; is that what you are saying?”
Later in his deposition, he reiterated this seemingly unsupportable stance:
Q. “When he shuts the lights off and is accelerating away from you and drifts from lane to lane, is it not reckless in your mind?”
A. “He is reckless when he endangers his life, my life or the safety of the public. At this point he was not really endangering anybody at this point, in my opinion.”
The pursuing officer was not troubled, however, in his deliberations as to whether he should continue to pursue the gold Taurus after it “wiped out.” All things considered, he asserts he “…had ideal conditions” to do so.
Q. “You still concluded even after the wipeout that the general motoring public would not be in unreasonable danger if the chase continued?”
A. “That is true.”
Q. And it would be true even after he [the suspect] shut off his lights?”
Q “And it would be true even after he accelerated away from you at high speed?”
The pursuing officer admits that no one ever “authorized” him to engage in the high speed pursuit of the Taurus nor did he specifically seek such permission.
After “wiping out” his vehicle on a grassy meridian, the suspect accelerated his vehicle onto Route 95. With sirens blaring and overhead lights flashing, the police were right behind him
It is critical to note that it is uncontested that while (1) traveling down Route 95 South (2) at a high rate of speed (3) with his headlights off and (4) with at least four police cruisers traveling behind him, the suspect was ultimately observed to come to an abrupt and complete stop, make a hurried U-turn and began driving the wrong way (northbound), into oncoming traffic on Route 95 South. By all accounts, his vehicle proceeded into oncoming traffic while in the “high speed lane.” He barely missed striking the vehicles of several police officers who were in pursuit. Remarkably, new fewer than three pursuing police officers promptly turned their respective vehicles around and began driving the wrong wayon Route 95 South as well. None of the officers who were deposed, however, will admit that they were in the process of “chasing” the Taurus at this point in time. Instead, they uniformly adopt the untenable position that they independently decided to travel in the wrong direction on the highway with their respective lights flashing and sirens wailing in an effort to warn the motoring public that the suspect was heading in their direction, at a high rate of speed and with his headlights off.
In his haste to elude police, the suspect next drove the wrong way onto a ramp which led to nearby Route 10. In so doing, he came close to striking an off duty police officer who happened to be traveling on the ramp at that hour. This officer called police headquarters to report that the suspect was operating his vehicle the wrong way on the ramp without illuminated headlights. In that recorded conversation, she is heard to remark “[d]o you know that guy that they’re chasing? He almost hit me on the ramp to Route 10.” [Emphasis added]. The off-duty officer added that the Taurus did not have its headlights illuminated and that the driver was going to “f*cking kill somebody.” At her deposition, she stated that she estimated the suspect’s speed at 85-90 mph while driving on the ramp en route to Route 10. She recalls that “it was unbelievable…he never even hit the brake. This car was gone in a flash.”
Remarkably, police cruisers had followed the suspect’s vehicle onto the ramp, (again by traveling the in wrong direction, against traffic).
The suspect next began traveling the wrong way on Route 10 with at least 4 police cars trailing behind him with their sirens and overhead lights fully engaged. It is farther down the road on Route 10 when the suspect drove his gold Taurus head long into the victim’s vehicle.
Police Department Vehicle Operation Policy
Through discovery the plaintiff obtained a vehicle chase policy promulgated by the city. It was fairly established through deposition that while the policy was provided to officers, there was no effort undertaken to confirm that officers had indeed read or otherwise understood the policy.
A portion of the policy begins by noting that “it is the policy of this Department to discourage the use of high speed pursuits except in extremely limited circumstances.” It also takes care to place in bold print the warning that “Rhode Island state law states that a police officer must terminate the high speed pursuit when in his/her judgment the dangers created by the pursuit outweigh the need for immediate apprehension.”To this end, police are to consider “what harm would come to the general safety of the public if the pursuit were to be terminated and the suspect were apprehended at a later date?” This is precisely the analysis that was undertaken by the Providence police when they abandoned their pursuit of the gold Taurus and instead patrolled the suspect’s home address.
The policy is clear that “the mere fact that the crime is a felony is not justification for a pursuit. However, officers of this department may be authorized to initiate and engage in a pursuit for the following offenses pursuant to the above considerations: (i) murder; (ii) forcible rape; (iii) a robbery where violence was used; (iv) assault with a deadly weapon where serious life threatening injury to the victim was sustained and the perpetrator remains a threat to others; (v) kidnapping; (vi) escaped felons from either prison or a mental health facility who are considered more of a danger to the public if they get away then the chase itself; (vii) mentally deranged persons who are more of a danger to public safety if they get away than the chase itself; and, (viii) arson if the arson resulted in a death or serious personal injury.”
It is clear, (and the defendants do not refute), that the facts pertaining to the underlying case do not fit any of the recognized and established offenses which may authorize police to engage in a high speed pursuit. Indeed, police did not really have an understanding of exactly why they were chasing the suspect on this particular evening. Instead, police uniformly testified that they engaged in the pursuit of the suspect (i) because Providence had been chasing him earlier; (ii) they received a report that he possessed a firearm and was dangerous; and, (iii) he previously refused to stop for police.
Certainly, the policy contained no provision, contemplation or encouragement for pursuing officers to drive the wrong way on a high way while in pursuit of a fleeing motorist.
The plaintiff argued that the issue was not whether the police believed they were “chasing” the suspect but rather whether the suspect reasonably believed that he was being pursued by police.
It is entirely reasonable to conclude that hearing their collective sirens and seeing their ubiquitous overhead flashing lights facilitated the suspect’s belief that police were unrelenting in their effort to capture him. This carried with it the unintended yet foreseeable consequence of encouraging the suspect to employ ever more desperate measures to elude police. As a proximate and foreseeable result of their gross negligence, the ensuing accident occurred.
At the time of the accident, the victim was studying to become an EMT and was returning home from a night class that she had attended for that purpose. Simply stated, an unbroken chain of events, well beyond her control, was placed into motion which brought about an inevitable and predictable result.
The instant case is particularly significant because it may be the first case to apply the law that was established in the case of Mary Seide v. The State of Rhode Island, (2005),which expressly permits citizens to bring actions against the police department for violations of a Police Chase Policy. It is relevant to note that several law firms initially declined to represent the plaintiff due to their apparent belief that a claim could not be successfully maintained.
The central question in the case was whether the plaintiffs could meet the burden of proving that the defendants were “reckless” rather than merely negligent. The plaintiff argued that pursing police ignored their own “chase policy” in engaging in a high speed pursuit of a motorist who was clearly operating his vehicle recklessly. Had the defendant made a simple inquiry, they could have easily learned the suspect’s identity and simply waited to arrest him at his residence. The plaintiff stressed that the Providence police department’s conduct (when faced with similar circumstances), served as the model on how the defendant should have acted. For their part, the defendant asserted that they did all that they could do to try to protect the motoring public. They deny that their “pursuit” continued after the suspect had reversed directions on Route 95. As such, the defendants claim that the actions of the suspect were beyond their control.
The victim suffered numerous injuries as a result of the accident. These included, but were not limited to, T12 complete paraplegia, left acetabular fracture, left greater trochanteric fracture, and right pubic ramus fracture.
The case was submitted to mediation whereby the plaintiffs presented an interactive audio/visual program which synthesized an animated map of the pursuit route, selected broadcasts from police, photos of the collision and excerpted portions of both the deposition testimony and the relevant “pursuit” policy. The case settled for $2,500,000.