©2011 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) 2011 U.S. Supreme Court Sykes v. United States
In Sykes v. United States, [i] the United States Supreme Court considered a sentencing case that may have some implications on how law enforcement and the courts look at pursuits. Sykes was charged with a violation of federal firearms law after he was arrested for being a felon in possession of a firearm. Sykes also received an enhanced sentence under the federal sentencing guidelines because he had three previous convictions for a violent felony or drug offense. Sykes challenged his enhanced sentence arguing that one of the prior convictions justifying the enhancement was not a violent felony. The conviction which he argued was not a violent felony related to an Indiana charge of fleeing from the police. Thus, the United States Supreme Court was squarely faced with deciding whether fleeing from law enforcement qualifies as a crime of violence.
At the outset the Court noted that under Indiana law, flight from law enforcement with a vehicle after being ordered to stop through words or emergency equipment, constitutes a Class D felony. The Court described Sykes flight and arrest as follows: “After observing Sykes driving without using needed headlights, police activated their emergency equipment for a traffic stop. Sykes did not stop. A chase ensued. Sykes wove through traffic, drove on the wrong side of the road and through yards containing bystanders, passed through a fence, and struck the rear of a house. Then he fled on foot. He was found only with the aid of a police dog.” On appeal to the United States Supreme Court Sykes did not dispute that his flight from the police was a felony, but argued instead that it was not a violent felony.
In its analysis of the federal statutes defining what constitutes a violent crime, the Court pointed out that “to be a violent crime, it must be an offense that otherwise involves conduct that presents a serious potential risk of physical injury to another.” While there are other categories which qualify as a violent crime under the federal law, this particular provision (Residual provision) was the only one which applied to vehicle flight.
The Court went on to assert:
When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense. Even if the criminal attempting to elude capture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match his speed or use force to bring him within their custody. A perpetrator’s indifference to these collateral consequences has violent—even lethal—potential for others. A criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others…The attempt to elude capture is a direct challenge to an officer’s authority. It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase. The felon’s conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide. In Sykes’ case, officers pursued a man with two prior violent felony convictions and marijuana in his possession. In other cases officers may discover more about the violent potential of the fleeing suspect by running a check on the license plate or by recognizing the fugitive as a convicted felon…
Because an accepted way to restrain a driver who poses dangers to others is through seizure, officers pursuing fleeing drivers may deem themselves duty bound to escalate their response to ensure the felon is apprehended. Scott v. Harris, 550 U. S. 372, 385 (2007), rejected the possibility that police could eliminate the danger from a vehicle flight by giving up the chase because the perpetrator “might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.” And once the pursued vehicle is stopped, it is sometimes necessary for officers to approach with guns drawn to effect arrest. Confrontation with police is the expected result of vehicle flight. It places property and persons at serious risk of injury…. Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture.
The Court concluded that Felony vehicle flight constitutes a violent felony under the federal Armed Career Criminals Act.
What does this mean for pursuits?
First, does your state have a felony eluding statute as Indiana does?
Second and most important is we do not know whether or how state courts will consider or apply this decision.
Third, under Tennessee v. Garner [ii], “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Since the Court has concluded that this is a violent felony that poses a threat one can expect to see arguments that deadly force may be justifiable in all pursuit cases.
Fourth, there is an overwhelming rejection by the United States Supreme Court that law enforcement has any obligation to stop when pursuing a subject and suggests that law enforcement has a duty to pursue these individuals. Note the Court’s language: “It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase.”
Finally, many agencies have a “violent felony only” pursuit policy. Since pursuit is now defined by the United States Supreme Court as a violent felony, (assuming your state has a felony eluding statute), it seems that the pursuit itself will justify initiating a chase under such policies unless they are carefully written to preclude the pursuit itself from being a justification.
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NOTE: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
CITATIONS:
[i] Sykes v. United States, ___U.S.___ slip opinion No. 09–11311 June 9, 2011.
[ii] Tennessee v. Garner, 471 U.S. 1 (1985).
