(a) Officers should consider a person to be “fleeing” only when it is reasonably apparent that the person is attempting to elude or evade capture by a police officer, after the officer has attempted to conduct a lawful stop or custodial arrest of that person. Officers should not consider a person to be fleeing when such person has no legal obligation to stop or submit and engages in lawful avoidance of contact with a police officer.
(b) Police should pursue a fleeing person, whether by foot or vehicle, only when:
- (1) the nature and severity of the conduct or offense for which the person would be pursued are such that the person’s immediate apprehension directly advances the goal of public safety; and
- (2) the pursuit would not subject the officer, the fleeing person, or a member of the public to an undue risk of harm.
- The decision to continue or terminate a pursuit should be based on an ongoing evaluation of these factors.
(c) All pursuits should be conducted in a manner commensurate with the considerations above and consistent with the principles set forth in § 1.04. A pursuit should cease immediately once the pursuit poses an undue risk of harm to any person or when immediate apprehension is no longer necessary to advance the goal of public safety.
(d) If a pursuit results in the apprehension of a fleeing person, the person should, as soon as reasonably practicable, be placed in the custody of officers who were not involved in the pursuit, to minimize the risk of retaliation or reprisals by any pursuing officers. Any use of force during or after a pursuit should be applied according to the principles set forth in Chapter 7.
(e) Agencies should develop policies dedicated specifically to addressing how pursuits should be conducted, including which tactics are permitted and prohibited. Policies should recognize the distinctions between pursuits conducted on foot and those conducted in vehicles, and should account for the different risks posed by each to participants and bystanders.
Comment:
a. Police-involved pursuits require special attention. Although it may seem plain that police should pursue and apprehend persons seeking to avoid a lawful stop or arrest by a police officer, a growing body of research indicates that not all police-involved pursuits are necessary to promote public safety, and that some pose an unreasonable risk of injury or death to officers, to members of the public, and to persons in flight. Although pursuits involving vehicles are particularly risky for participants and nonparticipants alike, pursuits by foot can also be dangerous and expose officers, persons in flight, and bystanders to considerable safety risks. In fact, it is fair to say that no pursuit is without some risk. Despite those risks, many pursuits are commenced without specific consideration of whether immediate apprehension of a fleeing person is necessary to advance public safety or whether a pursuit constitutes a disproportionate response to the circumstances that preceded it, in light of the risks posed by pursuit. This Section addresses how to maximize the benefit to public safety that police-involved pursuits can offer when conducted appropriately, while minimizing risks.
b. Defining “flight.” Police pursuits necessarily involve someone who is attempting to avoid apprehension by police. This Section establishes two elements for determining whether a person is fleeing from police and, consequently, can be the subject of a police pursuit. First, it requires that police officers have attempted to conduct a lawful stop or custodial arrest of the person. This element ensures that police officers have legal authorization to stop and detain someone (i.e., the constituent acts involved in apprehending them) before commencing a pursuit. Second, it establishes a reasonableness standard for determining whether the person is attempting to avoid being the subject of a lawful stop or custodial arrest. This necessarily implies that the person, in the eyes of a reasonable observer, must have attempted to avoid apprehension after being obligated by law to comply with an officer’s command to stop or to permit their arrest. Accordingly, someone who would otherwise be free to refuse an officer’s request to stop could not then be pursued once they attempt to lawfully avoid police contact, a fact this Section makes clear. This element ensures that officers recognize and heed the difference between lawful avoidance and unlawful evasion. Additionally, this element does not permit officers to use a person’s lawful avoidance to justify another attempted stop of that person unless the other stop can be independently justified on other grounds. This Section does not address when stops and arrests are lawful; that is the subject of the rest of this Chapter.
c. Conducting appropriate pursuits. Recognizing the risks associated with police pursuits, this Section permits police pursuits only when circumstances warrant such action. It sets forth two requirements for commencing and continuing a pursuit, both of which ultimately are rooted in the preservation of public safety and well-being, and which should be considered in relation to one another in making a decision to commence or terminate a pursuit.
First, it is important to recognize that the cessation of pursuit of a person does not imply that the person has been allowed to escape or avoid accountability. In favoring pursuits, officers and others, including members of the public, may have in mind rule-of-law considerations—that taken as a whole it is bad for deterrence and the orderly functioning of society if individuals simply can commit offenses and then flee. However, police pursuits are merely one tactic for apprehending offenders. Police can utilize other means to ensure that criminal conduct is held to account. For example, when a fleeing person’s identity is known, it may be possible to delay apprehension to a time when active pursuit is unnecessary, thus holding that person accountable without heightening the risk involved in apprehension. Alternatively, investigation after the fact may reveal the fleeing suspect’s identity.
Next, it is important to understand that all pursuits carry inherent risk of harm, and this risk must inform when pursuits occur. This is not to say that there must be absolutely no risk of harm at all before officers engage in pursuit, as that would mean pursuits never would occur. Particularly when the person in flight is armed or has otherwise demonstrated a potential for violence, pursuit may be called for despite the risks. Importantly, when the risk of harm arising from the pursuit itself outweighs the benefit gained by the immediate apprehension of the fleeing person, this Section requires that the pursuit cease immediately.
Finally, because pursuits carry inherent risk, they should be reserved only for situations in which public safety favors or requires the immediate apprehension of a person. Making this determination requires consideration of a variety of factors, including the nature and severity of the conduct for which apprehension would be sought, the likelihood of identifying the suspect otherwise, and—again—the likelihood of harm from the pursuit itself. If the risks of harm are tangible, pursuit may be inappropriate when apprehension is unnecessary to eliminate a threat of future, serious unlawful acts or harm to other individuals, or when the individual can be apprehended otherwise.
d. Minimizing retribution against fleeing suspects. Pursuits can be immensely frustrating and stressful experiences for the officers involved. See generally Simon Baldwin et al., Stress-Activity Mapping: Physiological Responses During General Duty Police Encounters, 10 Frontiers in Psych. 1 (2019) (describing the physiological effects of various policing-related tasks, including those implicated by police pursuits, such as threat assessment, use of force, and apprehension of suspects). Sometimes, this frustration and stress can lead officers to seek retribution or use disproportionate force against fleeing suspects once they have been apprehended. See generally Peter. G. Renden et al., Effects of Threat, Trait Anxiety and State Anxiety on Police Officers’ Actions During an Arrest, 22 Leg. Crim. Psych. 116 (2017) (discussing the consistently negative impact of acute stress on police task performance, including the increased use of disproportionate force when a threat is perceived); Arne Nieuwenhuys et al., Shoot or Don’t Shoot? Why Police Officers are More Inclined to Shoot When They are Anxious, 12 Emotion 827 (2012) (finding that officers who experienced high-anxiety shooting scenarios were more likely to shoot surrendering suspects than those in low-anxiety scenarios). Retribution can take the form of verbal insults, threats of physical or deadly force—even when no use of force is warranted or legally permitted—or acts of omission like delayed administration of medical care. Further, even when no retribution is intended by an officer, high stress during and after a pursuit can severely impair judgment and motor-skill performance, increasing the likelihood that officers will miscalculate the force necessary to apprehend and detain a fleeing person. This conduct obviously is harmful to the apprehended person, but it also may lead to disciplinary or even criminal process against the officer, even when the pursuit otherwise was conducted appropriately and for a legitimate safety purpose. To avoid these outcomes, this Section proposes that a person who has been apprehended by a pursuing officer be placed, as soon as reasonably practicable, in the custody of officers uninvolved with the pursuit to ensure that the person’s police custodians remain dispassionate, thereby minimizing the risk of reprisal against that person.
e. Pursuit policies. Although police pursuit policies have received increased attention in recent years, many departments still lack dedicated policies that address pursuit specifically and account for the unique circumstances and risks associated with pursuits. Some departments instead rely on their existing stop, arrest, and use-of-force policies to guide officer conduct across all contexts, including those involving pursuits. This approach, however, poorly prepares officers to understand their obligation to preserve public safety in pursuit scenarios, fails to inform them of permitted and prohibited tactics, and offers no guidance about when pursuits are to be commenced, ended, or avoided altogether. The only way to guide officers adequately on these aspects of pursuit operations is to address them within policies specifically dedicated to them.
For example, the Baltimore Police Department’s foot-pursuit policy comprises eight pages of comprehensive guidance on core pursuit principles, prohibited actions, officer responsibilities during pursuits, and considerations for commencing and terminating pursuits, among other directives. See generally Baltimore Police Department, Policy 1505 – Foot Pursuits (2021). In contrast, an October 2021 review of the policies of the 15 largest police departments by officer headcount revealed that although all had a vehicular-pursuit policy of some kind, four departments lacked any kind of dedicated foot-pursuit policy and at least one department offered only nominal foot-pursuit guidance.
Reporters’ Notes
1. Pursuits are common and necessary. Although official counts of police-involved pursuits are frustratingly difficult to come by, it is apparent that pursuits are a rather commonplace occurrence for American law enforcement, particularly larger municipal police agencies. Available data is limited, but statistics from the U.S. Department of Justice indicate that local and state law-enforcement agencies engage in approximately 68,000 police-involved vehicle pursuits per year, a tally separate from the countless more that occur via foot, for which data is virtually nonexistent. See Bureau of Just. Stats., U.S. Dep’t of Just., Police Vehicle Pursuits, 2012–2013 2 (2017) (providing statistics for 2012, the most recent year for which federally aggregated national data is available); see also Joel H. Garner & Christopher D. Maxwell, Understanding the Use of Force By and Against the Police in Six Jurisdictions, Final Report 35 (2002) (reporting that, in a sample of 7,512 arrests reviewed from six urban police departments, three percent involved pursuit by foot and 2.4 percent involved pursuit by car). More recent state-level data from 2019 supports the notion that pursuits are common, with Connecticut having recorded 739 for the year, Pennsylvania recording 1,965, Illinois recording 512 (of which 270 occurred in Chicago alone), and California recording an astounding 8,822. See Penn. State Police Bureau of Res. & Dev., Pennsylvania Police Pursuits 2019 Annual Report 1, 4 (2020); Ill. L. Enforcement Training & Stands. Bd., Analysis of Illinois Police Pursuit Reporting: 2019 3 (2020); Conn. Gen. Assembly, Connecticut Police Pursuit Data – 2019, Summary Descriptive Information 4 (2020); Cal. Highway Patrol, Report to the Legislature, Senate Bill 719, Police Pursuits 2 (2020); see also David Struett, 66% of Chicago Police Chases in 2019 Ended in Crashes — 8 of them Fatal — Yet Pursuit Policy Went Unchanged until Late 2020, Emails Show, Chicago Sun-Times (May 12, 2021), https://chicago.suntimes.com/crime/2021/5/12/22425231/lori-lightfoot-chicago-police-vehicle-pursuit-policy-emails. The frequency of police-involved pursuits indicates that they serve a vital function, one linked to a central mission directive of most police agencies: enforcement of the laws through the apprehension of lawbreakers. However, the ubiquity and usefulness of pursuit as a practice does not alone justify its unguided use, particularly given the heightened risk pursuits pose to the safety of participants and bystanders.
2. Vehicle pursuits are dangerous. The 68,000 vehicle pursuits recorded by the U.S. Department of Justice for 2012 resulted in 351 deaths, just shy of the 355 deaths that resulted on average each year between 1996 and 2015. See Bureau of Just. Stats., supra, at 1, 6. Of these annual deaths, 65 percent were of individuals in the vehicle being pursued, 29 percent were of motorists uninvolved with the pursuit, four percent were of pedestrian bystanders, and just over one percent were of persons in police vehicles. Id. at 6. Although officers were much less likely than others to suffer fatal injuries during pursuit collisions, officer deaths resulting from pursuit-related collisions have accounted for five to six percent of all line-of-duty deaths each year from 1970 to 2016. See Michael White, Lisa Dario & John Shjarback, Assessing Dangerousness in Policing: An Analysis of Officer Deaths in the United States, 1970–2016, 18 Criminology & Pub. Pol’y 11, 18 (2019).
Fatalities are just one indicator of dangerousness and represent a relatively small subset of the total number of injuries resulting from police-involved pursuits. For example, the California Highway Patrol reported that nearly a quarter of the vehicle pursuits conducted by local and state law enforcement in California in 2019 resulted in collisions, with approximately one-third of those resulting in injuries to at least one person. See Cal. Highway Patrol, supra, at 2 (reporting that 23.3% of the 8,822 total pursuits for 2019 resulted in a vehicular collision, 32.7% of which—or 672—resulted in injury). In Connecticut, 17.8 percent of pursuits involved a collision, with just under one-third of those resulting in injury. See Conn. Gen. Assembly, supra, at 4. And in Chicago, a staggering 66 percent of pursuits resulted in collisions, with 4.4 percent of those resulting in fatal injury. See Struett, supra. The risks to both property and person are thus demonstrably high, particularly when pursuits occur in population centers and high-traffic areas.
3. Foot pursuits are dangerous. Available data, while limited, indicates that foot pursuits are more likely to end in an officer-involved shooting and to disproportionately impact people of color than interactions not involving pursuits. According to data reported by the Federal Bureau of Investigation, 14 police officers were killed from 2016 to 2019 while pursuing suspects on foot. See Fed. Bureau of Investigation, Law Enforcement Officers Killed and Assaulted, Uniform Crime Reports, available at https://ucr.fbi.gov/leoka. An investigation by the Chicago Tribune revealed that more than one-third of the 235 police shootings in Chicago from 2010 to 2015 involved a foot chase, and that 94 percent of persons shot by police during such encounters were Black. See Angela Caputo, Jennifer Smith Richards & Jason Meisner, Third of Police Shootings Started with Foot Chases, Tribune Analysis Finds, Chi. Trib. (Sept. 07, 2016), https://www.chicagotribune.com/investigations/ct-chicago-police-shooting-foot-chase-met-20160907-story.html. Around one-half of those pursuits resulting in a shooting began with enforcement of a minor offense, such as public drinking or curfew violations. See id. Thirteen of the 81 civilians shot by police after a foot chase had no gun, and four were completely unarmed. See id.
Similarly, foot pursuits were involved in 22 to 27 percent of all officer-involved shootings in Los Angeles County, 48 percent of all such shootings in Philadelphia, and 26 percent of all such shootings in Las Vegas. See Las Vegas Metro. Police Dep’t, Use of Force and Vehicle Pursuit Annual 5-Year Statistical Report 2016–2020, at 34 (2020); Robert Kaminski et al., Correlates of Foot Pursuit Injuries in the Los Angeles County Sheriff’s Department, 15 Police Quarterly 177, 179 (2012). The same trends are evident in Austin, Texas, where officers chased over 2,000 persons on foot from August 1, 2010, to July 31, 2013, resulting in injuries to 150 officers and one in five suspects. See Tony Plohetski, Dangerous Pursuit: Austin Police Foot Chases Can Lead to Injuries, Shootings, Austin Am.-Statesman (Sept. 8, 2013), https://www.statesman.com/news/20130908/dangerous-pursuit-austin-police-foot-chases-can-lead-toinjuries-shootings. Additionally, more than 30 percent of all police shootings in Austin during this period involved a foot pursuit. See id.
4. Pursuits are costly. Civil liabilities arising from pursuit-related injuries and property damage can be substantial. In 2019, just two wrongful-death settlements arising from deaths sustained during police-involved vehicular pursuits (representing just two percent of all settlements) accounted for 30 percent of all money paid to settle police-related torts lawsuits in Chicago that year. See City of Chicago, Report on Chicago Police Department 2019 Litigation 2 (2020). Vehicle pursuit cases also comprised 74 percent of all jury-awarded damages paid by Chicago on behalf of the Chicago Police Department that year. See id. In one case, a jury returned a $21.3 million award, the highest such award for a vehicle-pursuit case in more than 15 years. Even after the award was negotiated down to $19.25 million during post-verdict settlement discussions, the award still eclipsed prior pursuit-related post-verdict settlements in that timespan. See id. Another case resulted in a $450,000 settlement awarded to an unarmed military veteran who, after being pursued on foot for drinking an open container of alcohol on the sidewalk, was shot by multiple police officers. See Caputo et al., supra. Although these figures come from just one municipality, they are indicative of the high cost that pursuit-related liabilities can impose for both settled and adjudicated torts claims.
5. Dedicated pursuit policies are needed. Dedicated and comprehensive pursuit policies help limit the risks and costs associated with pursuits, and may reduce their rate of occurrence altogether. A 1999 study of 436 law-enforcement agencies found that when pursuit policies were more restrictive of officers’ ability to initiate a pursuit, the rate of pursuits decreased, as did the rate of excessive use of force. See Conan Becknell, G. Larry Mays & Dennis M. Giever, Policy Restrictiveness and Police Pursuits, 22 Policing: An Int’l J. of Police Strategies & Mgmt. 22, 93 (1999). A 1997 survey of 800 police departments found that larger municipal police departments were more likely than smaller departments and county departments to have written pursuit policies. See Geoffrey P. Alpert, Police Pursuit: Policies and Training, Nat’l Inst. of Just. (1997). Of the 800 departments surveyed, 48 percent reported a policy change within the previous two years, and 87 percent of those policies were more restrictive than the policies they replaced. See id.
Police departments increasingly have recognized the importance of having dedicated pursuit policies, and have developed policies that, to varying degrees, offer guidance and impose limitations on when and how to pursue fleeing persons. The Atlanta, Georgia, Police Department, for example, permits vehicle pursuits only for nine enumerated felony offenses, and prohibits them entirely for traffic offenses, misdemeanors, and property crimes. See Atlanta Police Dep’t, Policy Manual, Standard Operating Procedure 3050 (2021). The Orlando, Florida, Police Department similarly prohibits vehicle pursuits for nonfelony offenses, but permits commanders to make case-by-case exceptions. See Orlando Police Dep’t, Policy and Procedure § 1120.11 (2018). The state of New Jersey grants considerable latitude to its officers to determine whether to commence a pursuit, particularly if they reasonably believe the fleeing person poses an imminent threat to others, but it constrains the tactics officers can deploy in their pursuit, such as prohibiting vehicle pursuits conducted against the permitted direction of traffic. See N.J. Off. of the Att’y Gen., Use of Force Policy Addendum B, Vehicular Pursuit Policy 4-6, 8-9 (2020). The Las Vegas, Nevada, Police Department has a dedicated foot-pursuit policy prohibiting officers involved in a pursuit from laying hands on the suspect so long as the suspect is not endangering anyone. See Las Vegas Metro. Police Dep’t, Department Manual, § 5/212.05 (2021). The department credits the policy for a 23-percent drop in use-of-force incidents and an 11-percent drop in officer injuries, though researchers have been unable to verify those claims because the department did not track foot-pursuit statistics at that time. See Zara Abrams, What Works to Reduce Police Brutality, 51 Monitor on Psychology 30 (2020); see also Phillip Atiba Goff, Identity Traps: How to Think About Race and Policing, Behav. Sci. & Pol’y 2(2), at 11, 17 (2016).
Despite these trends, and despite a multiplicity of policy models available to adapt, many police departments lack any kind of meaningful policy on police-involved pursuits, leaving their officers with inadequate guidance. Additionally, although some departments have policies relating to vehicle pursuits, they may lack policies relating to foot pursuits, which are different enough from vehicle pursuits and other policing scenarios to warrant their own policies. For example, vehicle-pursuit policies may direct officers on the appropriate use of tactics such as ramming, box-ins, pursuit intervention technique (PIT) and tactical vehicle intervention (TVI) maneuvers, and road spikes, while foot-pursuit policies may discuss surveillance and containment strategies such as block searching and K-9 support. Compare vehicle pursuit policies, City of Portland Police Bureau, Directives Manual § 0630.05 (2021), Las Vegas Metro. Police Dep’t, Department Manual § 6/014.00 (2021), and New Orleans Police Dep’t, Policy Manual § 41.5, with foot pursuit policies, City of Portland Police Bureau, Directives Manual § 0630.15 (2021), Las Vegas Metro. Police Dep’t, Department Manual § 5/212.05 (2021), and New Orleans Police Dep’t, Policy Manual § 41.4 (2015). Although a department’s vehicle- and foot-pursuit policies should contain guidance that accounts for any factors that may be uniquely applicable to those scenarios, all policies should contain discussion of common considerations that apply across all contexts, such as the impact that traffic, weather, and time of day may have when deciding whether to commence, continue, or terminate a pursuit. See, e.g., City of Portland Police Bureau, Directives Manual §§ 0630.05, 0630.15 (2021); New Orleans Police Dep’t, Policy Manual §§ 41.4-41.5 (2015).
Further, policies should extend beyond discussion of permissions and prohibitions and address adjacent considerations that inform and motivate officer conduct prior to, during, and after pursuits. For example, even among departments that have robust operational policies on pursuits, most lack any discussion relating to whether an officer will face disciplinary action for exercising discretion to decline to pursue or to terminate a pursuit prior to apprehending the fleeing person. To their credit, some departments, like the Portland, Oregon, Police Department, stand as exceptions, and offer a template for others to follow, but departments should treat these considerations seriously enough to develop their own tailored policies. See City of Portland Police Bureau, Directives Manual § 0630.15 (2021).
As a final note, there has been some legislative movement toward imposing a statewide policy on pursuits. Washington, for example, enacted a law effective July 2021 that, among other requirements, imposes probable-cause and reasonable-suspicion standards for the commencement of pursuits, depending on the nature of the underlying offense, and prohibits them outright for lower-level offenses. See H.B. 1054, 67th Leg., Reg. Sess. (Wash. 2021). Other states, like Kentucky, have enacted bills that require departments to develop their own policies and require officers to receive a baseline level of training before becoming authorized to participate in pursuits. See 20 R.S. H.B. 298, 2020 Reg. Sess. (Ky. 2020). Legislative attention to this issue should be encouraged, particularly since state involvement in this issue could motivate further deliberation and action at the local level.