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April 26, 2004 

        Forum Column
        
        By Robert L. Bastian Jr.
        
        The state Legislature should enact SB1866, the bill to repeal police immunity for injury-causing police chases where the public is not otherwise in "imminent peril." The legislation promotes public safety, fairness and governmental accountability. Its only flaw is that it does not go far enough, making injury to innocent bystanders a matter of strict liability.
        The bill's text recites data from the National Highway Traffic Safety Administration that, in 2001, 365 fatalities resulted nationwide from police pursuits. California had the highest number of fatalities, 51, of which 24 were innocent bystanders - one innocent fatality nearly every two wweeks. Scholars familiar with the reporting system from which these numbers are derived, Fatality Analysis Reporting System, believe they are, for various reasons, understated.
        The research of a nationally recognized expert in police pursuits, professor Geoffrey Alpert, indicates that 40 percent of pursuits end in crashes, 20 percent in personal injury and 1 percent in death. Alpert observed that, since 1985, these percentages are consistent from study to study, jurisdiction to jurisdiction, regardless of pursuit policy.
        But the death that grabbed the attention of the bill's sponsor, Sen. Sam Aanestad, described as a law-and-order Republican from a rural district, was that of his 15-year-old constituent, Kristie Priano, a promising, popular and loved honor student, class officer, community volunteer and athlete. 
        The Chico police were engaged in a high-speed chase of another teenager who took her mother's car without permission. Even though they knew where the joy-riding girl lived, police pursued the car at high speeds through numerous intersections until the fleeing car struck the van that Kristie was riding in, killing her.
        The law requires police departments to have promulgated written procedures for police chases to immunize the officers. Remarkably, the law does not require officers to follow those procedures. Nor does it set standards for the quality of the procedures.
        Regarding the chase resulting in Kristie's death, Chico Police Chief Bruce Hagerty stated that the officers followed policy.
        "As pursuits go," Hagerty said, "this is as controlled as you can get."
        That is precisely the problem.
        Police chases are, according to Los Angeles Sheriff Lee Baca in a letter to Aanestad opposing the bill, "extremely complex, dynamic and unpredictable events." 
        But, as such, they are extremely simple and predictable in their result: the more police chases, the more unintended consequences, carnage and tragedy. All the more reason to subject them to outside supervision.
        Police opposition focuses on the legislation's potential cost in terms of municipal liability. The issue, however, is not so much what the cost is as who shall bear it?
        The law is that the innocent victim injured, maimed or killed at random must bear the entire cost of such policies. The logic of the law is that police pursuits are not so important that the public should underwrite their foreseeable costs but important enough to impose a negative lottery ticket on the Kristie Prianos who are mowed down at random.
        The ethicist John Rawls famously tested the fairness of public policy by conducting a thought experiment, positing a veil of ignorance: If everyone was afforded a pre-understanding of the distribution of a policy but was unaware on whom the distribution fell, would he or she consent to the policy beforehand? If we know in advance that police pursuits to benefit the polity are going to mow down innocent victims, would we distribute the cost of that benefit across the polity or concentrate it only on the victims?
        People would be unlikely to disagree about whether a child should be sacrificed for the overzealous enforcement of law that, with but a little police patience, could have been enforced, anyway. Holding such negative lottery tickets is not part of the social contract.
        Supporters of police pursuits complain that the question, as phrased, misdirects blame away from the person who started the pursuit. Instead, critics suggest the better approach is increased criminal penalties for fleeing.
        But it takes two to form a pursuit. The issue is not inviting a pursuit. It is accepting the invitation. Added criminal penalties are unlikely to deter where a fleeing suspect's judgment, presumptively lacking, is impaired by alcohol, drugs, mental illness or, in the case of the driver who slammed into the van carrying Kristie, teenage immaturity.
        If people assume that police pursuits serve a public benefit, then the public should pay the cost. Still, Baca warns against a potentially "enormous liability" for law enforcement from the bill. Impliedly, then, the more "enormous" the liability, the more enormous the cost now unfairly imposed at random.
        Finally, some police officers express resentment, even a sense of betrayal, at the thought of having their streetwise judgments questioned "with the benefit of 20/20 hindsight" in the sanctity and calm of court. 
        In court, however, the defendant police officer's job is not at stake, nor does he face discipline as he might under the present system of internal police department review to determine whether he followed the department's promulgated policy. At stake in court is, Who shall pay the otherwise private cost of a public benefit?
        The real second-guessing comes from the responsible department heads or municipal entities in determining whether such chases are, after accounting for all of their costs, an effective use of budgetary resources. That is, those managing public resources must, when confronted with the entire costs of their policies, continually review whether the benefits outweigh the costs and justify those decisions to the polity.
        Those are the real decisions which, under the new law, will be subject to second-guessing. In short, SB1866, by more closely matching the costs of such policies to the perceived benefits, results in a public policy not only of greater fairness but also of greater accountability.
        Under the current law, all the parents of Kristie Priano can do is maintain a Web site dedicated to their daughter and continue to lobby their elected representatives in Sacramento. In the process, though, they have turned their tragedy into a proposal that promotes safety, fairness and public accountability.
        
        Robert L. Bastian Jr. Esquire is a partner in Bastian & Dini in Los Angeles and a long time UNION subscriber