Illinois Association of Defense Trial Counsel
P.O. Box 7288, Springfield, IL 62791
IDC Quarterly Vol. 8, No. 3 (8.3.16)
Civil Rights Update
By:
Bradford B. Ingram and David A. Perkins
Heyl, Royster, Voelker & Allen, Peoria
Supreme Court Sets High Standard
for Police Pursuit Liability
For more than a decade, the Federal Courts have utilized different standards of culpability in determining
when a law enforcement officer has violated substantive due process in a high-speed pursuit case. At least one
circuit adopted a gross negligence standard, while others utilized the familiar deliberate indifference standard
for imposing liability. On May 26, 1998, the Supreme Court etched a brighter line and held that deliberate
indifference is insufficient to impose liability on police officers in pursuit cases, and that liability exists only
when there is intentional conduct which shocks the conscience.
In County of Sacramento v. Lewis, 118 S.Ct. 1708 (1998), Deputy James Smith observed a motorcycle
operated by 18-year-old Brian Willard traveling at a high speed. Sixteen-year-old Philip Lewis was a
passenger on the motorcycle. When Willard disregarded a verbal order to stop his motorcycle, Deputy Smith
activated his emergency lights and siren and began a high-speed pursuit. The pursuit lasted 75 seconds over a
course of 1.3 miles in a residential neighborhood. Willard maneuvered his motorcycle in and out of oncoming
traffic and forced two cars and a bicycle to swerve off the roadway. The motorcycle and patrol vehicles
reached speeds up to 100 mph, with Smith following at a distance as short as 100 feet. Evidence indicated that
Deputy Smith’s vehicle, traveling at 100 mph, would have required 650 feet to stop. The chase was terminated
after Willard lost control when attempting a sharp turn. The patrol car maneuvered past Willard, but struck
Lewis, propelling him 70 feet down the road and inflicting fatal injuries.
Lewis’s representative filed Section 1983 claims against Sacramento County, the Sacramento County
Sheriff’s Department, and Deputy Smith alleging a deprivation of Philip Lewis’s Fourteenth Amendment
substantive due process right to life. The district court granted Deputy Smith’s motion for summary judgment,
reasoning that even if he had violated the Constitution, he was entitled to qualified immunity. The Court of
Appeals for the Ninth Circuit reversed, holding that the appropriate degree of fault to be applied to high-speed
police pursuit is deliberate indifference to, or reckless disregard for, a person’s right to life and personal
security. The Supreme Court granted certiorari to resolve a conflict among the circuits regarding the level of
culpability necessary to violate substantive due process in pursuit cases.
The Supreme Court initially addressed whether substantive due process was the appropriate source of
constitutional protection, or whether the subject was necessarily governed by a more definitive provision of the
Constitution. The Court noted that it had historically been reluctant to expand the concepts of substantive due
process, as was demonstrated in Graham v. Connor,1 where the Court held that if a constitutional claim was
covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be
analyzed under the standard appropriate to that specific provision, and not under the rubric of substantive due
process. The substantive due process analysis therefore was inappropriate if Lewis’s claim was covered by the
Fourth Amendment. The Court determined that the Fourth Amendment analysis was inappropriate since
“attempting” to seize a person through a police pursuit does not amount to a “seizure” within the meaning of
the Fourth Amendment. The Court looked to its 1989 decision in Brower v. County of Inyo2 wherein it held
that a Fourth Amendment seizure did not occur whenever there was a governmentally caused termination of an
individual’s freedom of movement, but only when there was a governmental termination of freedom of
movement through means intentionally applied. The Court therefore concluded that Graham’s more specificprovision rule was no bar to Lewis’s suit.
Having determined that substantive due process analysis was appropriate, the Court endeavored to
harmonize its earlier decisions. The Court noted that deliberate indifference that shocks the conscience in one
environment may not be so patently egregious in another. The Court distinguished custodial prison cases
where the state, by an affirmative exercise of its power, restrained an individual’s liberty that rendered the
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Illinois Association of Defense Trial Counsel
P.O. Box 7288, Springfield, IL 62791
IDC Quarterly Vol. 8, No. 3 (8.3.16)
individual incapable of caring for himself. In the custodial prison situations, the Court had previously held that
deliberate indifference could rise to a constitutionally shocking level, which is sufficient to impose state actor
liability. The Court also reviewed its prior decisions which addressed state actor liability in a prison riot
situation, wherein it held that a much higher standard of fault than deliberate indifference was necessary. The
Court compared sudden police chases to those instances where prison officials faced riots and noted that both
required decisive action which must be made “in haste, under pressure, and frequently without the luxury of a
second chance.” The Court further observed that when unforeseen circumstances demand an officer’s instant
judgment, “even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that
implicates ‘the large concerns of the governors and the governed.’ ” The Court concluded that police pursuit
liability should only result from purposeful conduct and stated:
Accordingly, we hold that high-speed chases with no intent to harm suspects physically or to worsen
there legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action
under §1983. The fault claimed on Smith’s part in this case accordingly fails to meet the “shocks-theconscience” test.
Although the plaintiffs were unable to demonstrate a substantive due process violation, they were not
without a remedy. State common law liability may exist, even though the claim fell short of a constitutional
violation. As the Supreme Court noted in 1992, decisions about civil liability standards that involve a host of
policy choices, should be resolved by locally elected representatives, or by the state courts enforcing the
common law of torts, rather than by federal judges interpreting the basic charter of government for the entire
country.3
The law enforcement community should derive great comfort in the Court’s decision to set a high standard
for police pursuit liability. It is doubtful, however, that the Court’s decision will eliminate the confusion which
exists as to which discretionary acts create a constitutional tort. Deliberate indifference is sufficient to impose
liability when physically restraining an individual, but is insufficient in a high-speed pursuit situation, even
though both situations require decisive action which must be made “in haste, under pressure, and frequently
without the luxury of a second chance.” From an officer’s point of view, the law is anything but clear.
Endnotes
1
2
490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).
3
See Collins v. Harker Heights, 503 U.S. 15, 128-129, 112 S.Ct 1061, 117 L.Ed.2d 261
(1992).
About the Authors
Bradford B. Ingram is a partner in the Peoria firm of Heyl, Royster, Voelker & Allen. He is in charge of the employment law and workers’
compensation practices and manages the defense of civil rights claims in the Peoria office. Mr. Ingram concentrates his practice in the areas of
employment and workers’ compensation law and also defends civil rights discrimination claims and represents police and municipal defendants
in tort immunity suits and related constitutional claims. He received his B.A. in 1976 from Drake University and his J.D. in 1980 from Drake
University Law School. He is a member of DRI, IDC, the American Counsel Association and the Peoria County Bar Association.
David A. Perkins is a partner in the Peoria firm of Heyl, Royster, Voelker & Allen. He concentrates his practice in the areas of civil rights,
municipal liability, arson/insurance fraud and general litigation. Mr. Perkins received his BA in 1985 from the University of Illinois at Springfield
and his J.D. from the University of Iowa in 1987. He is a member of the Peoria County, Illinois State and American Bar Associations.
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