Deep pocket files: Newark police chase

by Ted Frank on April 5, 2007

The outrage is so common, we may have to create its own category. This one is in Newark, New Jersey: three car thieves running from police in a stolen SUV swerved into a group of pedestrians. Taxpayers are on the hook for a $3.6 million settlement, a substantial chunk of which will go to attorneys. [AP/Newsday] The Newark police department has “changed its chase policy” as a result; no mention in the press coverage that now criminals know that they are more likely to escape if they engage in a dangerous high-speed getaway, they’re more likely to engage in a high-speed getaway that will endanger the public. Earlier: Feb. 28; Feb. 27; Jan. 9; Nov. 27, 2005 and links therein.

{ 20 comments }

1 Justinian Lane 04.05.07 at 12:20 pm

“…now criminals know that they are more likely to escape if they engage in a dangerous high-speed getaway, they’re more likely to engage in a high-speed getaway that will endanger the public.”

New Jersey is not the only state to have enacted such a policy. Are there any studies based upon those other states that can either refute or support your assertion?

2 Ted 04.05.07 at 12:33 pm

See the linked-to Overlawyered posts for anecdotal evidence from both criminals and police officers agreeing with that assessment.

I’m unaware of any studies, nor am I aware of any way of doing a legitimate study, given that policies and data collection vary widely from state to state and locality to locality.

One can measure these issues indirectly. For example, look at the relative crime rates of Washington, DC, and suburban Washington in the jurisdiction of Virginia: one is considerably safer than the other. Of course, police-chase policies aren’t the only reason why a car is more likely to be stolen in DC than Virginia; there are confounding factors such as the recognition of Second Amendment rights in Virginia, but not in DC, which make the law-abiding citizens of the latter a more inviting target for criminals.

3 Justinian Lane 04.05.07 at 1:23 pm

I hate making public policy decisions based upon anecdotal evidence. This is definitely something worthy of study, although both choices can probably qualify as a lesser evil.

I’m not sure if the government should be held liable for the actions of a criminal in a chase, but I do think they should be if an officer injures the public. Perhaps such a policy will lead to better police training.

I don’t agree that comparing the crime rates of Virginia and D.C. can tell us much about this situation as there are many other factors that influence crime rates… as you acknowledge.

4 Ted 04.05.07 at 1:34 pm

It’s not just anecdotal evidence, it’s anecdotes that confirm basic economic principles: if you give people an incentive to do something, they’re more likely to do it. As your co-blogger Charles Silver titled one of his law review articles, “It’s the Incentives, Stupid.”

5 Justinian Lane 04.05.07 at 2:09 pm

The question isn’t whether criminals are more likely to drive recklessly.

The question is whether the public is safer having police chase the criminals at high speeds, or whether the public is safer if the police don’t and try and catch the criminals at a later date.

It’s a plausible assumption that criminals are likely to drive at high rates of speeds for longer distances when they are being pursued, which increases the probability of accidents. So too does the probability of an accident increase with every additional police car added to the chase.

Perhaps the determining factor of whether the police should engage in a high-speed chase is the seriousness of the crime the fleeing suspects are accused of committing. If someone driving with a suspended drivers license panics and flees at a high speed, I don’t think that warrants a high speed pursuit that puts lives at risk. But if Osama bin Ladin were behind the wheel, a high speed chase would be appropriate.

The best public policy is the one that is best for public safety. And anecdotal evidence – even that which confirms economic principles – doesn’t determine which policy that is.

6 Ted 04.05.07 at 3:20 pm

The question is whether criminals are more likely to drive recklessly. If criminals know that a high-speed chase will invariably be followed, caught, and punished, they won’t engage in the high-speed chase in the first place. (To the extent they do anyway, they’re dangerous, and should be caught and taken off the streets. Law-abiding citizens acting in good faith don’t engage in high-speed chases.)

The only reason that people engage in high-speed chases is because they believe that it improves their chances. That belief is a rational belief when litigation discourages police from engaging in the chase.

And that’s before the costs of the crimes that are committed while the criminal is out on the street because he or she wasn’t caught.

How do you propose catching a car thief “later”? Surely not by the license plate of the soon-to-be-abandoned stolen vehicle.

How do the police know that it’s Osama behind the wheel of the car who’s running away because he just got pulled over for a traffic violation? Remember that the Oklahoma City bomber got caught because of a minor traffic violation: if plaintiffs’ proposed chase rules were in effect, Tim McVeigh could have escaped entirely because he could have just sped off, and the police would have to break off the chase.

7 Deoxy 04.05.07 at 4:08 pm

The way to nd high speed chases and make the public the safest it can be is to make sur high-speed chases ALWAYS ALWAYS ALWAYS end badly for the chasee, preferably as soon as possible.

That is, consider the high-speed chasee to be a dangerous criminal… because they ARE. THEY are the ones putting the public in danger.

React accordingly. That is, pull no punches. Sniper shot from a helicopter? OK by me.

“But what if the crime isn’t worth killing them over?” Simple: then they shouldn’t run. High-speed chases could simply be considered a dangerous crime in and of themselves (as they should be).

Incidentally, I agree that no one should be killed over proprty… which is why thieves shouldn’t try to take it, not why I or the police shouldn’t be allowed to shoot them in defense. It is the choice of the thief, or in this case, the runner. Is it worth it? Well, when they decide to break into someone’s home/run from the police, THEY have just decided that it IS worth it.

8 Justinian Lane 04.05.07 at 4:20 pm

No need to go back and forth over this one a dozen times, so this will be my last response on this issue. (This assumes you have no problem with holding the fleeing suspect financially liable for damages caused by the chase.)

Determing the optimal policy is a matter of balancing. I would rather a car thief escape and ditch the car, instead of having the thief or the police officer lose control and kill a pedestrian(s).

But as you point out, the police officer won’t always know who is behind the wheel, and thus a no-chase policy does have the potential to let major bad guys get away, which is also undesirable. I think this is a case where there really are no right answers, as both policies put the public at risk.

I do have to point out a major flaw in your argument, though:

“If criminals know that a high-speed chase will invariably be followed, caught, and punished, they won’t engage in the high-speed chase in the first place.”

Criminals do engage in high-speed chases in states which allow the police to chase them. Therefore, they either believe they can evade the police, or getting caught isn’t enough of a deterrent to prevent the chases in the first place. I suspect many chases occur because of the latter possibility, such as when the suspect is already wanted for a crime which carries a punishment greater than reckless driving and he or she has little or nothing to lose by running.

9 Todd 04.05.07 at 4:42 pm

Fasten your seatbelts (pardon the pun), it looks like we may have another healthy Ted/Justinian debate on our hands.

Out here in the gallery, it looks like Ted may be nudging ahead.

10 Tom T. 04.06.07 at 12:52 am

The only reason that people engage in high-speed chases is because they believe that it improves their chances. That belief is a rational belief when litigation discourages police from engaging in the chase.

Ted, I agree with your first sentence, but I don’t think your second one follows. Criminals engage in high-speed flight in order to escape high-speed pursuit. You’re then saying, though, that if we remove the motivation for high-speed flight (high-speed police pursuit), criminals will engage in more high-speed flight. That’s a backward application of basic economic principles.

Shift gears (so to speak) by considering an analogy: How is the decision whether to engage in a high-speed pursuit different from the decision whether to fire one’s service weapon into a crowd of people? Criminals can escape pursuit by running into such a crowd, because they know that police will hesitate to fire their guns where there’s such a risk of hitting innocent people.

Put another way, why should the danger to pedestrians and other drivers from a police chase be of less concern than the danger to bystanders from police gunfire in a crowded area?

11 LAN3 04.06.07 at 3:25 am

Ted mentions DC vs. Virginia gun ownership; that and this article thrust into my mind the realization that the nerfing of police abilities to pursue criminals because they (and not the fleeing, reckless crooks) are on the hook for this unfortunate collateral harm is another reason I cannot trust the gun-control advocates who want guns to be prohibited to all except police. If that were the situation, it is inevitable that some municipalities or even states would take guns out of the hands of their own policemen in order to prevent stray bullets. In those places, truly only the criminals will have guns.

I’m not shouting about a slippering slope, here, just that the idea of disarming the entire population, and restricting sidearms to an obviously idealized (uncorruptible, undiscriminating, universally responsible, and rapidly-responding) police force is a program that, realized, wouldn’t satisfy its proponents because they still misunderstand who (and not what) is responsible for gun deaths, just as these unfortunate pedestrians don’t comprehend who it is that endangered them.

I’m a pedestrian, myself– I’m very sympathetic, because I’ve had some close calls by drivers, and I know I can’t dent a car that’ll break every bone in my body. I also know, though, that a driver’s only control on other vehicles is to limit the speed of the guy behind him. You can’t make the guy in front go faster unless you shove him.

12 Melvin 04.06.07 at 4:16 am

Hold on a minute here . . . the focus seems to have been lost: “…Three car thieves running from police in a stolen SUV swerved into a group of pedestrians.”

Uh, Justinian–it was the CAR THIEVES who swerved into the pedestrians wile running from their criminal act. Why are the car thieves not the ones on the hook for civil damages? [I assume there were charges of vehicular assault and reckless driving, or even attempted murder{?}, here against--at least--the thief driving!] I know, I KNOW . . . @%$%**@$&# deep pocket theory!!!!!

Seems to me this is “which came first, chicken or egg”? Thieves steal SUV, police find thieves in SUV and give chase, and thieves while trying a getaway run into a crowd of pedestrians. How do police end up being found negligent and pay out money?

Let’s see . . . thieves DON’T steal SUV, cops AREN’T looking for them, DON’T give chase, thieves DON’T swerve into crowd, NO ONE sues to get money from anyone. Make sense?

13 Ted 04.06.07 at 8:53 am

Tom, I think you have the sequence wrong, and thus the causation:

1) Police turn on flashers;
2) Criminal runs;
3) Police follow;
4) Criminal decides whether to give himself up or speed up.

I see where you’re going with the slippery slope argument, but there are critical factual distinctions:

1) Cops can outdrive criminals. They’re driving powerful Fords designed to handle precisely these situations, and have the power of numbers. Very very few criminals escape in a car if the police decide to give chase; when escapes do happen, it’s because the criminal abandons the car and goes on foot.
2) Except in the movies, a cop can’t fire into a crowd and hope to stop a criminal: even one-on-one, cops hit maybe 40% of their shots. Thus, changing the policy to allow cops to fire into crowds would not greatly change criminals’ risk calculations in deciding whether to escape into the crowd.
3) The criminals’ decision to speed endangers the public even if the cops give up the chase in response. The same is not true for the criminal escapes into the crowd and police holster their weapons scenario. Thus, the effect of incentivizing the “try to escape” strategy has a different effect on public safety.

14 Bill Alexander 04.06.07 at 10:14 am

I’m surprised it was only the city sued. The obvious target should be the car company for having the temerity to build a car capable of speeds over 35 mph.

15 Deoxy 04.06.07 at 10:14 am

“I would rather a car thief escape and ditch the car, instead of having the thief or the police officer lose control and kill a pedestrian(s).”

Problem with that sentiment: you CAN have it both ways! That is, you can both let the offender go AND get dead civilians.

The way the offender gets away is by speeding and reckless driving, etc. The only effect the police have on that is HOW LONG it gos on and if the person is rewarded (they get away) for the behaviour.

You get feewer CHASES, but not fewer incidents of reckless high speed (in fact, you’d almost certainly get more, as any criminal with half a brain and any confidence in his driving ability would do so). So, you effectively get the worst of both worlds: more time spent at reckless high speed AND fewer criminals caught.

Yay! Let’s do THAT! [/sarcasm]

Oh, and Ted’s last post to Tom (about Tom’s analogy not being applicable) is spot on – I was going to post something similar (but worded less succinctly, I’m sure).

16 markm 04.06.07 at 1:26 pm

When the flashers go on, not every criminal rationally decides whether or not it’s a good idea to try to outrun the cops. Many just react, stomping on the gas immediately, and thinking it through later, if ever. And it’s possible that a young person will do that even when all they’re trying to get out of is a traffic ticket. OTOH, if you knew that taking off at high speed would ensure you got away, wouldn’t you do it every time? So catching every single person who flees at high speed when the cops try to stop them, for any reason at all, won’t reduce the number of such incidents to zero, it certainly will reduce them. How the risks balance out is a tough question to answer, and you aren’t going to get it from statistical studies – these accidents just don’t happen often enough to separate the effects of different policies from random chance.

One other harm in not chasing is that sometimes that apparent traffic offender or car thief is actually a much more dangerous criminal, who will hurt or kill people until he is stopped. E.g., many steal cars just to drive them around a little, some steal them to sell to a chop shop (and may be carjackers who are indifferent to the dangers to their victims), and some steal them because they need a getaway car that can’t be traced back to them for high-risk armed robberies. It’s unlikely that a cop who lets a car thief get away is actually letting a serial robber-murderer get away with the evidence of his latest crime, but it’s also pretty unlikely that any innocents will be killed if he chases the car…

17 Tom T. 04.06.07 at 1:39 pm

Ted, it’s not that we disagree about the sequence of events. We’re both saying that the criminal’s decision in step (4) is driven by the police decision at step (3). As I see it, the difference is that you’re saying that the only two options that the criminal will consider are (a) give up or (b) flee recklessly. I’m suggesting that there is a third option (c) flee at a speed that is not life-threatening to those around them, once they see that they are not being pursued. If the criminal is indeed rational, he’s not going to risk his own life (or make himself needlessly conspicuous) through dangerous driving any more than he has to.

Moreover, eliminating the police pursuit indisputably eliminates the danger that the police cruiser will accidentally kill a bystander, as has happened in the past, here in DC.

As for my gunfire analogy, I read you to be essentially saying that it’s a difference of degree. Cops can outshoot most criminals, too; they’ve generally got more and bigger guns available. The issue is the likelihood of collateral harm to innocent people, which is the same issue at stake as to car chases. I do agree, though, that shooting into a crowd certainly carries much worse odds for bystanders, which weakens the analogy.

Your point 3 has validity, but only if the criminal continues to drive recklessly when not being pursued. As I mention above, I think a rational actor generally has incentives not to do so.

I should clarify that I’m only arguing about the public-safety effects; I do not support the award of damages from the city to the bystanders in this sort of case. This seems like a quintessential case for immunity.

18 jb 04.06.07 at 6:19 pm

I can’t believe anyone is seriously suggesting not doing everything possible to catch criminals.

If I had my car stolen, the cops had the perp in their sights and they just let him go, I’d be hopping mad, and I’d be right to.

Even if not chasing them produces higher short-term utility, the incentives are just wrong.

19 Melvin 04.08.07 at 1:09 pm

Uh, Justinian? . . . Justinian? . . . Justinian? . . . Justinian????

20 Ted 04.08.07 at 2:26 pm

Tom, if democratically-elected officials evaluating their pursuit policy weigh the costs and benefits and decide to agree with you instead of me, well, that’s one thing. What I object to is the regulation by litigation: it distorts the policy judgment if police are liable for the effects of a pursuit but are not liable for the effects of letting a criminal get away, and there is no way that this results in an optimal policy determination even aside from the fundamental unfairness of blaming the deep pocket for the action of the criminal. We seem to agree that this is a good case for immunity.

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