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HomeMy WebLinkAboutS5- Police t CITY OF SAN BERNARlO - REQUEST FOR OUNCIL ACTION 4 rom: Daniel A. Robbins Subject: Resolution of the City of San Chief of Police Bernardino adopting the revised �.. ept: Police Police Department's pursuit policy, SOP Chapter #36, ate: June 16, 1993 Procedure #3, in accordance with CVC 17004.7 , Public Ag6ncy Immunity ynopsis of Previous Council action: Resolution #92-452 iecommended motion: Adopt Resolution. i' rLt i 7f� i- Signatv e :ontact person: Daniel A. Robbins Phone: 384-5607 supporting data attached: yes Ward: FUNDING REQUIREMENTS: Amount: NSA Source: Finance: Zouncil Notes: S-5 1 RESOLUTION NO. 2 3 4 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING A REVISED POLICE DEPARTMENT PURSUIT POLICY, SOP CHAPTER #36, PROCEDURE #3, 5 IN ACCORDANCE WITH CVC 17004 . 7. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 The Mayor and Common Council of the City of San Bernardino 9 has reviewed and adopted the Police Department's pursuit policy, SOP Chapter #36, Procedure #3, "Vehicular Pursuits" in 10 accordance with CVC 17004 .7 "Public Agency Immunity. " 11 The Council has reviewed the policy and finds that it 12 complies with CVC 17004 . 7 (c) in that the policy provides for 13 supervisorial control, a procedure for designating a primary 14 pursuit vehicle, for determining the total number of vehicles 15 permitted to participate in the pursuit, for coordinating 16 operations with other jurisdictions, and guidelines for 17 determining when the interest of public safety and effective law 18 enforcement justify a vehicular pursuit and when a vehicular 19 pursuit should not be initiated or should be terminated. 20 21 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San 22 23 24 25 26 27 28 � 4 1 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING A REVISED POLICE DEPARTMENT'S PURSUIT POLICY, SOP CHAPTER #36, PROCEDURE 2 #3 , IN ACCORDANCE WITH CVC 17004 . 7 . 3 4 Bernardino at a meeting thereof, held on the 5 day of 1993 , by the following vote, to wit: 6 COUNCILMEMBERS AYES NAYS ABSTAIN ABSENT 7 NEGRETE 8 CURLIN 9 HERNANDEZ 10 OBERHELMAN 11 OFFICE VACANT 12 POPE-LUDLAM 13 MILLER 14 15 Rachel Clark, City Clerk 16 17 The following resolution is hereby approved this day of 1993 . 18 19 Tom Minor, Mayor 20 City of San Bernardino Approved as to form 21 and legal content: 22 JAMES F. PENMAN 23 City Attorney by• �, -� ���. ,�, 24 25 26 27 28 City Of San Bernardino San Bernardino Police Department Interoffice Memorandum To. Assistant Chief W. Harp From: Sgt. M. Kinsman��✓ Subject: Revised Vehicular Pursuit Policy Date: June 16, 1993 Copies: PROBLEM: I Vehicle Code Section 17004 . 7 provides limited liability immunity to a city which adopts the code's guidelines for police pursuits. The 2nd and 4th District Courts of Appeal have determined in Payne v. City of Perris and Colvin v. City of Gardena that pursuit policies based on the model pursuit policies recommended by the California Police Officers Association and the California Chiefs and Sheriffs are insufficient. The recommended guidelines give the pursuing officer "unfettered discretion" and therefore do not provide a balancing test weighing the risks to the public against the law enforcement interest in apprehension. The current vehicular pursuit policy is based on the CPOA model pursuit policy. RECOMMENDATION: 1 . Adopt the proposed, revised Vehicular Pursuit policy, Chapter #36, Procedure #3 . 2 . Submit a proposed resolution to the Mayor and Common Council for adopting the revised Police Department pursuit policy to obtain municipal immunity. FINDINGS : 1 . Vehicle Code Section 17004 . 7 (c) provides immunity for civil damages - death, personal injury, and property damage - resulting from a vehicle collision directly related to a police pursuit if minimum standards are adopted. The minimum standards are supervisorial control , number of participating police vehicles, coordination with other agencies, and public safety guidelines for the initiation and termination of police pursuits. 2 . The 2nd Appellate Court of Appeals in Colvin v City of Gardena ruled that the city lacked immunity protection under Vehicle Code 17004 . 7 due to the inadequacy of its pursuit policy. The city Pursuit Staff Study Page 2 failed to identify specific guidelines for initiating and discontinuing vehicle pursuits. The court listed these factors to be considered in terminating a pursuit: vehicular and pedestrian traffic, roadway and other environmental conditions. 3 . The 4th District Court of Appeals in Payne v City of Perris identified "broad and amorphous language" found in the guidelines their pursuit policy when addressing the officers' decision making process for terminating pursuits. The court determined that the department's policies failed to articulate or direct the decision making process concerning whether or not to initiate or terminate a pursuit. 4 . The contents of the pursuit guidelines for the cities of Perris and Gardena are similar to the City of San Bernardino's pursuit guidelines; therefore, are insufficient. I 5. Richard J. Morillo, Senior Assistant City Attorney has reviewed I both appellate court decisions and the current police pursuit guidelines. He has made some recommendations establishing more specific guidelines to assist the pursuing officer in his/her decision making process when deciding whether or not to terminate or initiate a high speed vehicular pursuit. These recommendations and some documentation guidelines have been incorporated in the proposed, revised pursuit policy. ATTACHMENTS /rm I STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEDURE #3 VEHICULAR PURSUITS REVISED 6-16-93 ****************************************************************** PURPOSE: Specific procedures for department personnel involved in any vehicular pursuits. POLICY• A. The essence of a successful pursuit is to apprehend the violator. It is unwise to take needless chances in an already dangerous activity. It is far better to either delay the arrest or abandon the pursuit rather than injure or kill anyone needlessly, including the police officer. B. It is our policy to apprehend all persons who are attempting to evade arrest. However, it must be remembered that the anticipated results must be worth the risk. Therefore, the pursuing officer is not to consider that he/she must continue a pursuit at all costs. C. The instructions in this SOP are meant primarily for high speed pursuits. At greatly reduced speeds, it is possible that good judgment would allow for deviations from these procedures. INITIATING, CONTINUING, AND TERMINATING A PURSUIT: A. The following factors should be considered when determining whether any pursuit should be initiated, continued, or terminated. 1 . The seriousness of the originating crime and its relationship to community safety; 2 . Safety of the public in the area of the pursuit; 3 . Safety of the pursuing officer(s) ; 4 . Volume of vehicular traffic; 5 . Volume of pedestrian traffic; 6 . Location of pursuit; 7 . Speeds involved; 8 . Time of day; 9 . Weather conditions; STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEDURE #3 VEHICULAR PURSUITS (REVISED) PAGE 2 ******************************************************************* 10. Road conditions; 11. Familiarity of the officer and supervisor or watch commander with the area of pursuit; 12 . Quality of radio communications between pursuing unit(s) and the dispatcher and supervisor; and 13 . The capability of the police vehicles involved. B. Once a pursuit is initiated, officers, field supervisors, and watch commanders should continually question whether the seriousness of the offense justifies continuing the pursuit. PURSUING UNITS: I A. A police unit shall not be engaged in a pursuit unless equipped with a red light and siren, activated and operating continuously. B. In all pursuits, only two units and a supervisor shall be involved in the pursuit at any time. The watch commander or field supervisor may approve additional units if necessary. The lead unit will be considered the primary unit. In the event the primary unit cannot continue, the secondary unit shall become the primary unit. Paralleling a pursuit is not permitted unless approved by the watch commander or field supervisor. This is not meant to discourage units from taking positions along or near the pursuit route to relay information. C. When a plain unit or motorcycle has initiated a pursuit, it shall be relieved when the first marked unit can practically assume the pursuit. D. Officers in all other units should remain alert to the pursuit's progress and location, and unless cleared by a supervisor, shall not become involved in the incident. E. Non-sworn personnel shall not, at any time, drive any City vehicle involved in a pursuit. PURSUIT RADIO PROCEDURE: A. The pursuing officer(s) shall remain on Channel One unless directed otherwise. STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEDURE #3 VEHICULAR PURSUITS (REVISED) PAGE 3 ******************************************************************* B. During the pursuit, the suspect vehicle requires the absolute attention of the lead or primary unit. Whenever possible, the unit behind the lead unit shall "call the pursuit" as outlined under the officer's responsibilities, allowing the lead unit to give full attention to the suspect vehicle. All units in the pursuit shall monitor the radio for messages directed to them. Radios shall be turned up and strict compliance shall be made with orders given. The use of automatic yelp of the I siren is discouraged as the high pitch has a tendency to drown out any incoming message. 1. Once the pursued vehicle is observed and followed by the helicopter, pursuing units shall remain in a Code 3 operation, decreasing speed; however, remaining close enough to effect an arrest at the termination of the pursuit. The aircraft is responsible for coordinating the ground units. PURSUING OFFICER'S RESPONSIBILITY: A. The initiating pursuit unit shall indicate: 1 . The known law violation or reason for the pursuit. 2 . Description of the fleeing vehicle and suspects. 3 . Location and direction of travel as changes take place. 4 . Any other information which is necessary to ensure effective pursuit tactics. 5 . Report known or probable wants on the fleeing vehicle and/or occupants. a. If a license number is relayed, the dispatcher shall determine registration/criminal want information and relay same to pursuing officers as soon as practical . COMMUNICATIONS RESPONSIBILITY: A. Inform other field units, a field supervisor, the watch commander, and helicopter when a pursuit is initiated. B. Shall relay to monitoring units: 1 . Clear the air for emergency traffic, 10-3 STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEDURE #3 VEHICULAR PURSUITS (REVISED) PAGE 4 2 . The direction of travel. 3 . Street traveled upon. 4 . The last intersection passed. 5. Any changes in direction of travel. 6. The reason for the pursuit. 7 . A complete description of the vehicle being pursued and the number of occupants. 8 . A registration check on the pursued vehicle license (if available) . C. Notify affected agencies and specify if assistance is or is not requested for the pursuit unit. D. Provide back-up units as requested. SUPERVISORY RESPONSIBILITY: A. Upon being notified of the pursuit, the field supervisor will assure himself of the following: 1. No more units than required or necessary are involved. 2 . Available equipment is utilized. 3 . Affected agencies are notified. 4 . The field sergeant (watch commander in the absence of a field sergeant) is responsible for the pursuit activities as outlined and has the authority to cancel a pursuit at any time it becomes necessary. 5 . A supervisor shall proceed to the pursuit termination point to provide guidance and necessary supervision. 6 . The supervisor(s) involved shall provide a report in writing to division commander; a critique and analysis of the pursuit. The supervisor shall complete a Highway Patrol Pursuit Report (CHP 187) and submit the report to the Traffic Bureau. PURSUITS INTO OTHER JURISDICTIONS: 0 STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEDURE #3 VEHICULAR PURSUITS (REVISED) PAGE 5 A. Should the decision be made to continue the pursuit out of the City of San Bernardino, the affected jurisdiction shall be notified without delay. They will be advised of the location, direction of travel and the cause or violation of law of the pursued vehicle. Their assistance may be requested to have a marked unit intercept and assume calling the pursuit from the secondary position. B. If the pursuit is assumed by another agency, the initiating officer will drop out of the pursuit; however, will proceed to the termination point to provide information which may be required for the arrest. PURSUITS INTO SAN BERNARDINO BY OTHER JURISDICTIONS: A. San Bernardino Police officers shall not join the pursuit unless specifically requested to do so by the pursuing jurisdiction and approved by the watch commander or sergeant. 1. San Bernardino Police officers will not join a pursuit on the freeways crossing San Bernardino by another jurisdiction. Officers may be assigned to stand by in the area of off-ramps, should the suspect vehicle enter surface streets. Stand by on on-ramps shall not occur. 2 . When a pursuit leaves the city, the San Bernardino officers will terminate their involvement unless directed otherwise. 3 . When approval is given to assist another agency in the pursuit, San Bernardino officers shall not "take over" or become the primary unit of the pursuit, unless the pursuing agency is incapable of continuing the pursuit. The San Bernardino officer's responsibility is to "call the pursuit" and aid in coordination where possible. 4 . No San Bernardino police unit shall join in any pursuit for any reason when there are three (3) or more police units already in the pursuit unless there is supervisory approval . PURSUIT TACTICS : A. During a pursuit the involved officers should continually evaluate the status of the pursuit and should continually question whether the seriousness of the violation warrants the continuation of the pursuit. STANDARD OPERATING PROCEDURE CHAPTER #36 PROCELURE #3 VEHICULAR PURSUITS (REVISED) PAGE 6 ******************************************************************* 1. At either the officer's or supervisor's discretion, the pursuit may be terminated at any time. B. The unit behind the suspect vehicle shall never be passed by another unit unless the lead unit approves the maneuver. C. All units while in pursuit, whether the vehicle in front of the unit is a police vehicle or the suspect vehicle, shall space themselves at a distance to ensure proper braking and reaction time in the event the lead vehicle slows, stops, or makes any other moves. D. Employing lawful intervention when involved in pursuits: 1. Officers shall refrain from employing intervention tactics when involved in a misdemeanor violation pursuit. a. During pursuits, the preservation of human life, especially innocent citizens from imminent great bodily harm or death, shall be a primary motivating factor. b. Officers shall not discharge a firearm at or from a moving vehicle except as the ultimate measure of self defense or defense of another when the suspect is using deadly force by means other than the vehicle. C. Barricading a roadway must be considered as a force likely to result in death. Officers shall not barricade a roadway to apprehend a suspect. "Rolling" roadblocks are also prohibited, unless specifically approved or requested by a supervisor. 2 . Intervention techniques may be employed only when all other reasonable options have been exhausted and when a felony is involved. 3 . A field supervisor or watch commander must first approve such action and will designate which of the units involved will perform the intervention. a. It will become the designated officer's decision as to when and where to conduct the intervention. b. All other units involved should be warned prior to implementing the intervention and they should STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEDURE #3 VEHICULAR PURSUITS (REVISED) PAGE 7 ******************************************************************* adjust their driving tactics appropriately. Officers should not attempt to intervene with a vehicle traveling over 35 mph. 4 . It is important for the officers and supervisors involved to remember that lawful intervention equates to that amount of force which may cause injury and/or death, and careful consideration should be given prior to implementing intervention. E. Officers not assigned shall not respond, loiter, or drive by the termination site of any pursuit. 1. Upon the termination of the pursuit, the station commander or sergeant shall assign units that are to remain outside the city limits of San Bernardino if the termination is in another jurisdiction and their presence or assistance is requested. F. Lawful intervention reporting: 1 . Per Section 2 . 1. 32 of the collision manual, lawful intervention is not a reportable traffic collision. 2 . For reporting purposes, a collision investigation will be conducted on all interventions where a police unit was used to intervene with the suspect vehicle. The face page of the investigation should be marked as "In House Only" . ID shall be called to the scene for photographs. If the action results in injury or death, the traffic investigator and Risk Management will be notified. * Risk Management will be notified for 'damage only' accidents also. VEHICLES INVOLVED IN PURSUITS : A. If bottomed-out during a pursuit, routinely deadline the vehicle at City Yards for inspection for possible damage, notify supervisor and leave necessary documentation. B. If vehicle does not suffer damage, still leave a vehicle repair slip indicating vehicle was involved in pursuit, so that preventative maintenance by City Yards may be scheduled. STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEMME #3 VEHICULAR PURSUITS (REVISED) PAGE 8 ******************************************************************* FORCED VEHICLE STOPS (LEGAL INTERVENTION) : A. The decision to attempt a forcible stop shall be based on careful consideration of all facts apparent to the officer. B. A forcible stop of a pursued vehicle may be undertaken only under the following circumstances: 1. When the officer has reason to believe that the continued movement of the pursued vehicle would place others in imminent danger of great bodily harm or death AND 2 . When the apparent risk of harm to a person or persons other than the occupant of the pursued vehicle is so great as to outweigh the apparent risk of harm involved in making the forcible stop AND 3 . After all other reasonable means of apprehension have been considered and rejected as impractical such as continue to follow, call for support, call for other department and/or allied agency assistance. C. An occupied privately-owned vehicle shall not be used to forcibly stop another vehicle. I D. The following tactics may be used to stop a pursued vehicle. The selection of the best method in each circumstance should be preceded by an evaluation of all factors surrounding the individual event. The method used should offer the greatest probability of success with the least likelihood of injury to the general public, the officer, and the suspect. 1 . Channelization - Officers may deliberately direct a vehicle into a given path or location (i.e. , unpaved roadway, dead-end road, etc. ) by using stationary objects (pylons, barricades, vehicles) placed in the current path of the pursued vehicle. 2 . Rolling Roadblocks - Officers may elect to use rolling roadblocks with the concurrence of a supervisor. The use of rolling roadblocks must be weighed against the potential risks presented by continuing the pursuit. 3 . Ramming - Officers, as a last resort, may elect to use a deliberate collision between a patrol vehicle and the pursued vehicle to terminate a pursuit. Use of a vehicle not equipped with a push bumper is discouraged. A STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEDURE #3 VEHICULAR PURSUITS (REVISED) PAGE 9 ******************************************************************* supervisor's permission should be obtained prior to the ramming. The guidelines below shall be followed: a. Motorcycles: 1) Officers shall not ram motorcycles or similar vehicles except: a) When necessary in defense of the officer's life or life of another or b) During the actual commission of an assault with a deadly weapon with a vehicle or C) When necessary to prevent the escape of a person whom the officer reasonably believes has committed a felony through the use or threatened use of deadly force or d) When necessary to apprehend a person who has committed an assault with a deadly weapon with a vehicle which the officer reasonably believes has resulted in serious injury or death. b. Vehicles other than motorcycles 1) To assure an officer is not left in a vulnerable position, consideration should be given to the final resting place of the patrol car and its proximity to the violator's vehicle prior to ramming. 2) Ramming should not occur when the pursued vehicle is traveling in excess of 35 mph. 4 . Boxing In - The use of boxing in as a technique for terminating pursuits is discouraged. Under ordinary circumstances, the potential hazard outweighs the chance for a successful stop of a violator and therefore should only be used at slow speeds or where the obvious risks can be eliminated or appreciably reduced. 5 . Use of Firearms - Officers may use firearms only as a 0 STANDARD OPERATING PROCEDURE CHAPTER #36 PROCEMM #3 VEHICULAR PURSUITS (REVISED) PAGE 10 ******************************************************************* last resort and shall be governed by Department Policy, Chapter 37 regarding use of weapons. E. A supervisor shall evaluate all forced vehicle stops and complete an interoffice memo to the appropriate division commander. I C I T Y O F S A N B E R N A R D I N O INTEROFFICE MEMORANDUM TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy COPIES: James F. Penman, Sgt. Michael Kinsman IWe have undertaken a review of the pursuit policy of the San Bernardino Police Department ( SOP Manual, Chapter 36, Procedure #3) in light of recent court decisions interpreting Vehicle Code 517004. 7. We conclude the present policy is deficient in failing to provide guidelines for initiating or terminating pursuits, and that the policy requires clarification as to designating the "lead vehicle. " Suggested revisions are attached. Background Vehicle Code 517004.7 confers limited immunity from liability on a City which adopts guidelines for police pursuits. The immunity only extends to potential liability for injuries or death or property damage "resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been or believes he or she is being or has been pursued by a peace officer employed by a public entity in a motor vehicle. " In other words, the immunity applies only to injuries caused by the suspect/violator ' s vehicle. No immunity is conferred by this statute for injuries caused by a City vehicle involved in a pursuit . ' Subsection ( c ) of Vehicle Code 517004. 7 sets forth four criteria that must be satisfied for a policy to confer immunity: " If the public entity has adopted a policy for the safe conduct of vehicular pursuits by peace officers, it shall meet all of the following minimum standards: 'Under Vehicle Code §17004, public employees are immune from personal liability for injury, death or property damage occurring " .chile responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law . . . " This immunity is absolute and does not depend upon the adoption of a pursuit policy. TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 2 ( 1 ) It provides that, if available, there be supervisory control of the pursuit. ( 2 ) It provides procedures for designating the primary pursuit vehicle and for determining the total number of vehicles to be permitted to participate at one time in the pursuit. ( 3 ) It provides procedures for coordinating operations with other jurisdictions. ( 4 ) It provides guidelines for determining when the interests of public safety and effective law enforcement justify a vehicular pursuit and when a vehicular pursuit should not be initiated or should be terminated. " Present San Bernardino Police Department Policy The complete present San Bernardino policy is attached hereto as Exhibit A. Relevant provisions include the following: "WHEN PURSUITS MAY BE INITIATED: Pursuits may be initiated when an officer has reasonable cause to stop a vehicle and the driver fails to stop as required by law. "WHEN TO DISCONTINUE A PURSUIT: Officer should consider discontinuing a pursuit when it poses a serious and unreasonable risk of harm to the pursuing officer or to the public, balanced against the seriousness of the violations. " "PURSUIT UNITS : A. A police unit shall not be engaged in a pursuit unless equipped with a red light and siren, activated and operating continuously. B . In all pursuits, only two units shall be involved in the pursuit at any time. The station commander or field supervisor may approve additional units, if necessary. TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 3 "PURSUIT RADIO PROCEDURE: B. During the pursuit, the suspect vehicle requires the absolute attention of the lead or primary unit. Whenever possible, the unit behind the lead unit shall 'call the pursuit' , as outlined under the officer's responsibilities, allowing the lead unit to give full attention to the suspect vehicle. . . . 1 . Once the pursued vehicle is observed and followed by the helicopter, pursuing units shall remain in a Code 3 operation, decreasing speed, however, remaining close enough to effect an arrest at the termination of the pursuit. 2. The aircraft then becomes the pursuing unit and is responsible for coordinating the ground units. Payne v. City of Perris In Payne v. City of Perris ( 1993) 12 Cal.App.4th 1738, the Fourth District Court of Appeal held that Perris ' pursuit policy failed to confer immunity because it was not specific enough in providing guidelines on when pursuits should be initiated or discontinued. The opinion does not indicate what Perris' policy said about initiating pursuits, except that it was similar to the City of Gardena ' s policy that was found to be deficient in Colvin v. City of Gardena ( 1992 ) 11 Ca1 .App. 4th 1270, discussed below. On terminating pursuits, the Perris policy provided: "Officers should consider discontinuing a pursuit when it poses a serious and unreasonable risk of harm to the pursuing officer or to the public, balanced against the seriousness of the violation( s ) . Justification to continue a pursuit will be based on what reasonably appears to be the facts know or perceived by the officer. " Colvin v.City of Gardena In Colvin v. City of Gardena, supra, the Court held that Gardena ' s pursuit policy failed to meet the criteria of Vehicle Code 517004 . 7 in four respects. One of them -- limiting the number of vehicles in a pursuit -- is not a deficiency in San Bernardino' s policy, and thus will not be discussed. The other problems were TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 4 the following: 1. Initiation of pursuits: Gardena' s policy stated: "Pursuits may be initiated when an officer has reasonable cause to stop a vehicle and the driver fails to stop as required by law. " (This is identical to San Bernardino' s policy. ) The Court found this insufficient because the Vehicle Code contemplates "guidelines for determining when the interest of public safety and effective law enforcement justify a vehicular pursuit and when a vehicular pursuit should not be initiated. " A policy which simply authorized a pursuit in all instances fell short of this subjective. 2 . Termination of pursuits: I Gardena' s policy provided: "Justification to continue a pursuit will be based on what reasonably appears to be the facts known or perceived by the officer. Officers should consider discontinuing a pursuit when it poses a serious and unreasonable risk of harm to the pursuing officer or to the public balanced against the seriousness of the violations, or when directed to do so by a supervisor. " As the Court did in Payne, supra, the Colvin court found that this standard vested too much discretion in the pursuing officer. 3 . Primary Vehicle: Gardena ' s policy contained no mechanism for designating the "primary vehicle" , although it did spell out specific responsibilities for the different vehicles involved. The court deemed it inadequate. Discussion Putting all of these together, it is clear that San Bernardino ' s policy needs revision in three aspects in order to take advantage of the immunity conferred by Vehicle Code § 17004. 7 . The provisions for initiating and discontinuing pursuits are insufficient and must be revised. Additionally, the mechanism for TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 5 designating the "primary" pursuit vehicle should be clarified. It appears that the "lead" vehicle is the intended "primary" vehicle, but the policy could be more specific. Drafting An Adequate Policy The only case to uphold pursuit guidelines under Vehicle Code §17004.7 is Weiner v. City of San Diego ( 1991 ) 229 Ca1.App.3d 1203. For reference, a copy of San Diego' s pursuit policy, as appended to the court' s decision in Colvin, supra, is attached hereto as Exhibit B. 1 . Initiation of Pursuits: The City of San Diego policy upheld in Weiner provided: "An officer may initiate a pursuit under the following conditions: a. When a known wanted felon is in the vehicle. b. When the occupant( s) of the vehicle have committed a crime in the officers' presence. C . When the officer has an articulable reason for wanting to stop the vehicle. " In Colvin, the court noted that San Diego' s policy was more specific than Gardena' s insofar as it provided for the initiation of a pursuit when a known wanted felon is in the vehicle or the occupants of the vehicle have committed a crime in the officer' s presence . It stopped short of endorsing it, however, probably because the "articulable reason" standard vests too much discretion in the pursuing officer. In Payne, the court quoted from the pursuit policy of the City of Bellevue, Washington, not as an example of an adequate policy, but to demonstrate that such policies could be adopted without unduly hampering law enforcement. The Bellevue, Washington policy calls for consideration of the following factors with respect to the initiation, continuation and termination of pursuits: " ( 1 ) the seriousness of the originating crime and its relationship to community safety; ( 2 ) safety of the public in the area of pursuit; TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 6 ( 3 ) safety of the pursuing officer( s) ; (4) volume of vehicular traffic; ( 5 ) volume of pedestrian traffic; ( 6) location of pursuit; ( 7 ) speeds involved; ( 8 ) time of day; ( 9 ) weather conditions; ( 10 ) road conditions; ( 11 ) familiarity of the officer and supervisor or commander with the area of pursuit; ( 12 ) quality of radio communications between pursuing unit( s ) and the dispatcher and supervisor; and ( 13 ) the capability of the police vehicles involved. " The Payne court also quoted from the model policy of the ° National Law Enforcement Policy Center: "The pursuing officer shall consider the following factors in determining whether to initiate a pursuit: ( 1 ) The performance capabilities of the policy vehicle; ( 2 ) The condition of the road surface upon which the pursuit is being conducted; ( 3 ) The amount of vehicular and pedestrian traffic in the area; and ( 4 ) Weather conditions. " Bellevue ' s policy is to be commended because all of the criteria seem to be common-sense factors, although it may focus too much on safety and not enough on necessity. We believe the model policy quoted in Payne is deficient, in that it has no regard for the seriousness of the offense for which the suspect is being pursued. TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 7 2. Termination of Pursuits: The following passage from Colvin is worth quoting at length insofar as the court contrasted Gardena' s inadequate policy with the policies of several other jurisdictions: "In addition to failing to set forth guidelines for initiating a pursuit, the City' s policy lacks any guidelines for discontinuing a pursuit. The City' s policy merely directs officers to engage in a cost/benefit analysis and to discontinue a pursuit whenever the risk of harm to the officer or to the public outweighs the seriousness of the violations. However, there are no guidelines to assist the officer in balancing risks and benefits. Consequently, this element of the City' s policy is purely conclusionary. "In contrast, the San Diego policy sets forth the following factors an officer should consider in determining whether a pursuit should be terminated: vehicular traffic, pedestrian, roadway and environmental conditions; the violation for which the suspect is wanted; whether the suspect is known to be a juvenile; and, whether the suspect has been identified to the point that later apprehension can be accomplished. "Also, in this regard, San Francisco' s policy states a pursuit should be discontinued when an unreasonable danger exists to the officers or others. Its guidelines go on to state: 'An unreasonable danger exists when speeds dangerously exceed the normal flow of traffic or when vehicular or pedestrian traffic necessitates dangerous maneuvering exceeding the performance capabilities of the vehicle or driver, or when the reason for apprehending the pursued vehicle clearly is outweighed by the risk of harm imposed on the person or property of the officers or others if the pursuit is continued. ' "Also by comparison, the policy of the County of Los Angeles directs a pursuit to be discontinued inter alia, ' [ a] fter a reasonably short distance when the only known reason for the pursuit is traffic violations or other misdemeanors, or known or suspected GTA [grand theft auto] suspects ' or when the pursuit is as a result of action by another police department traversing the County' s jurisdiction and the County' s assistance is no TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 8 longer needed. "Further, the policies of the City of San Francisco and the County of Los Angeles both emphasize the immediate apprehension of the violator is 'never more important than the safety' of innocent persons or the officers themselves. Similarly, the San Diego policy directs the officers to ' continually question whether the seriousness of the offense justifies continuing the pursuit' and cautions that a pursuit should be continued only ' as long as it is safe to do so. "' Id. at 1284- 1285. — In Payne, the model policy of the National Law Enforcement Policy Center stated as follows with respect to termination of pursuits: "Pursuit shall be immediately terminated in any of the following circumstances: ( 1 ) Weather or traffic conditions substantially increase the danger of pursuit beyond the worth of apprehending the suspect; ( 2 ) The distance between the pursuit and fleeing vehicles is so great that further pursuit is futile; or ( 3 ) The danger posed by continued pursuit to the public, the officers or the suspect is greater than the value of apprehending the suspect( s) . " Again, we find the model policy deficient. Bellevue' s policy ( which covers both initiation and termination of pursuits) has practical appeal, as does San Diego' s (with the exception of the factor which reads "suspect is known to be a juvenile, " ) . 3 . Designating Primary Vehicle: The court in Colvin quoted or paraphrased the policies of several other jurisdictions and contrasting their policies to Gardena ' s with respect to designating the primary pursuit vehicle and limiting the number of vehicles involved in a pursuit: " In contrast, the policy of the City of Los Angeles states the initial pursuing unit shall be designated the primary pursuit vehicle, and that in the event the primary unit cannot continue as the primary unit, the TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 9 secondary unit shall become the primary unit. "Similarly, San Diego' s policy provides, in relevant part, that in the event another unit becomes better positioned to provide cover for the chase unit, then that unit shall become the primary assisting unit and the former assisting unit shall cease any violation of traffic laws. "The policy of the City of Los Angeles further states, inter alia: 'Number of police units participating. The initial pursuing police unit (primary unit ) and back-up police unit ( secondary unit) shall be the only units to pursue the suspect vehicle' . . . "Likewise, the policy of the County of Los Angles provides ' [t]he active pursuit shall normally consist of no more than three units; the primary unit; and two back- up units, ' unless more assistance is specifically requested. " Id. at 1286. It is mentioned, in the case of San Bernardino' s existing policy there appears to be a simple assumption that the lead unit in a pursuit is the "primary unit. " The change that needs to be made is to specifically provide that this is so. Recommendation We recommend the department replace the separate policy statements on initiating and terminating pursuits with a single statement covering their initiation, continuation and termination. The recommended SOP revision attached hereto is modeled after the Bellevue, Washington, policy, with the addition of language from San Diego ' s as to the need to "continually question whether the seriousness of the offense justifies continuing the pursuit . . . " We also recommend the statement in paragraph B under the heading "PURSUIT UNITS" be amended to incorporate the language from the LAPD policy, so that paragraph B will read as follows: " In all pursuits, only two units shall be involved in the pursuit at any time. The station commander or field supervisor may approve additional units, if necessary. The initial pursuing unit shall be the primary pursuit vehicle. In the event the primary unit cannot continue as the primary unit, the secondary unit shall become the primary unit. " TO: Dan A. Robbins, Chief of Police Victor Lorch, Director of Risk Management FROM: Richard J. Morillo, Sr. Assistant City Attorney DATE: June 9, 1993 RE: Review of Police Department Pursuit Policy Page 10 This concludes our comments. If you have any questions about the foregoing, please feel free to call. RJM:ms[robbinsl .mem] Attachments RECOMMENDED REVISION TO SAN BERNARDINO POLICE DEPARTMENT PURSUIT POLICY (SOP Ch. 36, Procedure #3) Delete material under headings "WHEN PURSUITS MAY BE INITIATED" and "WHEN TO DISCONTINUE A PURSUIT" and substitute the following: "INITIATING, CONTINUING AND TERMINATING A PURSUIT: A. The following factors should be considered when determining whether any pursuit should be initiated, continued or terminated: ( 1 ) the seriousness of the originating crime and its relationship to community safety; ( 2 ) safety of the public in the area of pursuit; ( 3 ) safety of the pursuing officer( s) ; ( 4 ) volume of vehicular traffic; ( 5 ) volume of pedestrian traffic; ( 6 ) location of pursuit; ( 7 ) speeds involved; ( 8 ) time of day; ( 9 ) weather conditions; ( 10 ) road conditions; ( 11 ) familiarity of the officer and supervisor or commander with the area of pursuit; ( 12 ) quality of radio communications between pursuing unit( s ) and the dispatcher and supervisor; and ( 13 ) the capability of the police vehicles involved. B . Once a pursuit is initiated, officers, field supervisors and station commanders should continually question whether the seriousness of the offense justifies continuing the pursuit. "