Retired Judge's View: Police chases a thorny, no-win predicament
I have been following the news about the Minnesota State Patrol's chase last summer in Minneapolis, where the fleeing person ended up seriously injuring three children. Calls were made to review and/or amend troopers' pursuit policies as a result. As a person who viewed such offenders from the trial court bench for more than four decades and who also taught law-enforcement classes during those same 41 years, I know there are no quick or simple answers to this very difficult balancing act placed on the shoulders of our servants in law enforcement.
Some chase policies focus on the level of the offense. "Is it only a misdemeanor traffic offense, such as a simple speed?" But that policy contains a false assumption. Almost every traffic stop starts out as a simple traffic matter. But when someone flees the trooper, that criminal's act becomes the offense to focus on.
I use the term "criminal," as at that point they are indeed a serious criminal. The moment they flee, the incident is no longer just a minor traffic offense. As of Aug. 1, 1997, fleeing a peace officer in a motor vehicle is a felony. This year our Legislature increased the punishment for the offense, depending on whether injury or death results.
Some police agencies have adopted a policy to terminate a chase "when the danger created by the pursuit outweighs the public interest in immediate apprehension." Those are wonderful-sounding words, but in many instances they require a trooper to be prophetic, to make a call when they don't know where the person is going or if the criminal suddenly will slow down. Scenarios where that policy might be obvious to a trooper certainly can be imagined.
An example is a chase on the only road heading into a town where it is known in advance there is a street dance occurring. Unfortunately, in the vast majority of pursuits, the decision requires the officer to know, somehow, that the fleeing criminal not only will know the chase has ended but miraculously also will begin driving with caution. That seems counterintuitive since during the chase the driver demonstrated a total disregard for all public safety and the rules of the road. Once they no longer see the lights behind them, they may simply presume they have sped up fast enough to start losing the officer. They are not then suddenly going to stop being a danger to the rest of the driving public. They are unlikely to just slow down.
In the heat of the moment, can a trooper be expected to guess why a person is fleeing and why they took the extreme action of refusing to stop for a police officer?
Many serious felons across America are finally apprehended simply because they made a minor traffic mistake. Thus, this is an important tool in not only the arsenal of law enforcement but also for our entire justice system.
For many police agencies, whether to chase is a no-win issue. If they continue to pursue someone, there is always the danger of an innocent citizen being injured. On the other hand, the same potential is there if they stop the pursuit. What if the criminal fled because he was drunk and on a mission to go kill his ex-spouse? What if he just car-jacked the vehicle and kidnapped the driver? The officer wouldn't know. If a victim is later raped and murdered because no one stopped the criminal, does her family have a legal recourse? More common, what if I would have safely yielded the right of way (as so many drivers on the road do) because I saw flashing red lights coming. But now, instead, I get struck as a driver blows an intersection or I get blown off the road because I had no notice of the speeding vehicle because there were no flashing red lights approaching?
More to the point, if I am a criminal and I know the trooper might not pursue me, won't I be more likely to make a run for it? If I am a criminal having good reason not to stop, what do I have to lose by fleeing?
I don't pretend to have the answers to this thorny balancing act. But some things should be kept in mind. First, our sentencing guidelines commission must put teeth in what the presumptive sentence should be for such offenders. Second, prosecutors must make this offense as important as DWI prosecutions. They both pose such high dangers to the public.
But this one has added elements. Instead of making poor driving choices while intoxicated, a fleeing offender purposely and with specific intent chooses to run and endanger others. A two-ton bullet in the shape of a vehicle is being shot down the barrel of a public roadway, where others have the right to be and to be safe.
It would seem these offenses should be one of the easiest types for prosecutors to succeed with at trial. Today's squads have dash cameras. Fleeing offenses are almost self-proving.
My final concern is just how many words and details we try to put into a pursuit policy. As a judge, I had the luxury of reviewing everything after the fact. Even then it was with the aid of professional attorneys and law clerks. I could take things under advisement for up to 90 days. Most officers don't have even 90 seconds to make most of their emergency decisions. The more words put into a chase policy the more likely an officer, weeks and months later, with the blessing of hindsight, might be accused of erring under some small glitch in that wording.
I am thankful I had 90 days to carefully review such matters.
Dale A. Wolf is a longtime 6th Judicial District judge chambered in the Carlton County Courthouse. He retired from full-time work in April 2014. He still presides in court periodically as a "senior judge."