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U.S. Court of Appeals 8th Circuit and Federal Liability forEmergency Vehicle Operation

Jack Ryan

An area where few federal lawsuits have occurred has been where a collision occurs at the result of a police officer’s emergency vehicle response to an in-progress radio call. A new case from the United States Court of Appeal for the 8th Circuit may expose public safety agencies to further liability in federal court based upon non-pursuit emergency vehicle operation.

In Terrell v. Larson, 2004 U.S. App. LEXIS 11417 (8th Cir. 2004) (decided June 10, 2004).

the United States Court of Appeal for the 8th Circuit reviewed a federal claim based on violation of the substantive due process rights of Talena Terrell who was killed when a police cruiser on the way to an in-progress domestic violence call proceeded through an intersection against a red traffic signal and collided with her vehicle.

Shortly after 10:00 p.m. on December 29, 2000, the Anoka County Sheriff’s Department received a call concerning a domestic incident in which a mom had locked herself in the family’s bathroom and was threatening to take off with her three-year old child. While the caller indicated that it was not an emergency, the dispatcher put the call out as an emergency.

The dispatch call was assigned to a deputy. Deputy Larson and Longen, who were having dinner and doing paperwork at a police substation notified the dispatcher that they would drop what they were doing and respond as backup to the call. Longen, who was a new officer was riding with Larson because his field training officer was on a day off. The dispatcher informed Deputy Larson that another deputy would cover the backup. Deputy Larson informed the dispatcher that he and Longen would respond anyway. Before the two deputies left the substation an additional deputy put himself on the way as backup.

Deputy Larson, driving a new police vehicle, a pickup truck, for the first time began driving to the call. The roads were slushy and wet. Deputy Larson was travelling behind a second police vehicle at speeds of 95 mph on the way to the domestic call. As Larson approached a major intersection, he was alerted by a flashing yellow light located 2/10 of a mile before the intersection that the traffic signal was about to turn red. Larson slowed his vehicle to 30-45 mph but when the intersection appeared clear, he gunned the vehicle and went through the intersection against the red signal at 60-64 mph. Tragically, the intersection was not clear and the truck driven by Deputy Larson came into collision with a vehicle driven by Talena Terrell, causing her death.

A lawsuit was filed by Terrell’s estate in federal court alleging a violation of Terrell’s substantive due process rights. The two deputies sought summary judgment and qualified immunity arguing that their actions did not “shock the conscience” since they did not have an “intent to cause harm unrelated to the legitimate object of arrest.”

The United States Court of Appeal distinguished emergency vehicle operation under the circumstances of this case from pursuit driving. The court held that although officers must shock the conscience in emergency vehicle response, they need not have an “intent to cause harm, unrelated to the legitimate object of arrest.” Instead, an officer’s deliberate indifference may be sufficient to shock the conscience. The court noted that in cases where “actual deliberation by an officer [before making a decision that may cause a constitutional injury] is practical, conduct that is deliberately indifferent may shock the conscience.”

The court then analyzed the facts in the light most favorable to Terrell’s estate and denied summary judgment and qualified immunity to Deputy Larson. The court cited several factors that indicated deliberate indifference on the part of Larson. Among those factors included Larson’s decision to go to the call, notwithstanding the fact that the dispatcher had covered the call with other units. The court noted the fact that this was the first time Larson had used this vehicle and the fact that the weather had caused the roadway to be wet and slushy. Further, an internal affairs investigation concluded that Larson had breached department policy by speeding through the intersection against a red-signal. Finally, Larson knew, based on the flashing yellow signal, that he would be coming to the intersection against the red light. The court concluded that any emergency was created by Larson himself and that his conduct, if proven, would be conscience shocking based upon deliberate indifference.

The court did grant Deputy Longen’s motion for summary judgment and dismiss him from the case. The court reasoned that Longen was a probationary officer and was merely “riding along” with Larson. The court concluded that Longen was in no position, due to his status to taken any action to intervene in Larson’s conscience-shocking behavior.

Points to Remember:

Liability may be imposed under statetort law for harm that occurs during a pursuit or emergency vehicle operation.

Law varies from state to state on this issue.

Policy makers must be aware of the requirements of their particular state as defined by statute or case law on high-speed pursuits.

In jurisdictions where state mandates exist, policies must reflect the mandates within the law.

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