Tice v. Cramer

O’HERN, J.,

concurring.

I join the Court’s opinion upholding the dismissal of this action on the basis that N.J.S.A. 59:5 — 2b(2) (section 5 — 2b(2)) affords immunity under the Tort Claims Act (the Act) to public officers and public employers when an injury is caused by “an escaping or escaped person.” I would have preferred that the dismissal be upheld on the basis of the immunity afforded under N.J.S.A. 59:3-3. (section 3-3) (the law-enforcement immunity). That section states in part: “A public employee is not liable if he acts in good faith in the execution or enforcement of any law.” That immunity would exonerate the employer as well.

The law-enforcement immunity was the first basis for affirmance set forth in the Attorney General’s brief, and I believe that a holding under section 3-3 would be more consistent with the internal structure and language of the Act. In fact, the immunities the two sections confer will likely converge when the contents of the “willful misconduct” and “good faith” exceptions to each immunity are filled out.

For although the issue of immunity arises here in the context of a high-speed car chase, the principle of decision is equally applicable to other uses of force to apprehend an escaping person. Those involved in law enforcement from the Attorney General on down realize that statutory and constitutional limits on the use of governmental force apply in such circumstances. Specifically, in the context of the section 5-2b(2) immunity, the Court recognizes that all immunities for public officers under the Act are “subject to an outer limit, willful misconduct by a public employee being expressly excluded from the scope of the Act’s immunity.” Ante at 375, 627 A2d at 1105. To suggest the law were otherwise could result in exposing police officers to criminal and civil liability and exposing, as well, the officer and the officer’s employer to civil liability for violation of the federal constitutional rights of injured persons.

Furthermore, that constitutional limits exist on the use of governmental force to subdue escaping persons is now well settled. In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Supreme Court held that a law-enforcement officer could not use deadly force to apprehend a fleeing suspected felon who was neither armed nor dangerous, and who did not pose a significant threat to public safety. A high-speed police pursuit that results in the fleeing person’s death in a police roadblock also may expose the officer and the public entity to liability. Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). “[I]t [is] enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Id. at 599, 109 S.Ct. at 1382, 103 L.Ed.2d at 637.

Municipalities and local-government units will undoubtedly promulgate standards aimed at providing the police with guidelines concerning the appropriate time to commence and to terminate pursuits. Some commentators believe such guidance is overdue. “High-speed vehicle pursuits are possibly the most dangerous of all ordinary police activities. Far more police vehicle chases occur each year than police shootings. However, development of legally sound police vehicle pursuit policies lags behind development of deadly force policies involving firearms.” Hugh Nugent et al., Restrictive Policies for High-Speed Police Pursuits, at 23 (National Institute of Justice, Issues & Practices Series No. 122025) (Restrictive Policies). Municipalities may be sued directly for inadequate training and a failure to provide police-pursuit guidelines as “persons” to whom the provisions of 42 U.S.C. § 1983 apply. If the “chase” policy implemented or the omission to consider any set of policy guidelines reflects a level of deliberate indifference to the violation of protected rights, the local-government unit may be held liable to injured persons under federal law. In determining instances in which the training may prove to be inadequate to safeguard the constitutional rights of persons, the Supreme Court has said:

But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need,

[City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412, 427 (1989).]

Some have read the Gamer, Harris and Brower eases to raise a real possibility of government-entity liability under federal law in the high-speed pursuit context.

Deliberate indifference to constitutional rights may be a standard few plaintiffs will ever meet. Indeed, Justice O’Connor did not believe that Mrs. Hams, the plaintiff in the City of Canton, could meet the deliberate indifference standard. But the risks inherent in high-speed pursuits are well known and cannot be taken lightly. As the facts of Brower v. County of Inyo make clear, high-speed pursuit can turn out to be the use of deadly force, as did the use of firearms in Tennessee v. Gamer. Moreover, under Gamer, a municipality may be liable for failing to have a policy limiting high-risk pursuits to circumstances justifying the risk. And under City of Canton, local governments may find themselves liable for failure to provide training that constrains this application of deadly force.

[Nugent, supra, Restrictive Policies at 5.]

The Report of the Attorney General’s Task Force on Police Vehicular Pursuit, at 1 (April 1993) (Task Force Report) raises similar concerns at the state level:

The necessity for guidance [of police conduct] is particularly acute in the area of police vehicular pursuits of suspected violators of the law. A car chase often contains elements of danger, not only to the pursuer and the pursued, but also to uninvolved pedestrians and motorists using the roadways of this State.

The report further concludes: “The existence of a vehicular pursuit policy narrowing law enforcement discretion may not only curtail litigation by decreasing the number of pursuits, but may also be a useful tool for public employees and entities faced with defending lawsuits for damages arising from pursuits of suspected offenders.” Id. at 1-2.

Under either the section 5-2(b)(2) (escaping person) or the section 3-3 (law enforcement) immunity, whether the pursuing police car or the suspect’s car strikes the innocent vehicle or pedestrian would make no difference to me. In either case, absent willful misconduct or a lack of good faith, statutory immunity will be provided for police officers engaged in vehicular pursuits. To rule otherwise, in the words of the Task Force Report,

will force officers into a position where doing what is right is subordinated to doing what is most insulated in terms of exposure to liability. “In their routine work, police officers must be free to make split-second judgments in good faith based on their experience and training without fear of personal liability.” Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex.1992) (Cornyn, J., concurring).

[Id. at 8.]