Death in the Fast Lane

Police Nab Perps. But at What Price?

By Cindy Ellen Hill

On Father’s Day, 2003, 39-year-old Vermont State Trooper Mike Johnson kissed his wife Kerri, daughter Reilly, 12, and sons Grady, 7, and McKendrick, 5, and left for work. It would be their last goodbye. While deploying a tire-deflating device across Interstate I-91 in Norwich, Johnson was killed by the speeding vehicle he was attempting to stop: Eric Daley, 24, who was being pursued by police at speeds exceeding 100 miles per hour. It was the first time in Vermont history that a state trooper was killed in the line of duty by another person.

Photo courtesy of Vermont State Police

Daley had been stopped for speeding. The ticket written, police considered calling a drug-detecting dog to Daley’s car. Declining to wait, and not under arrest, Daley drove away. Statements made in court indicate that Vermont State Police (VSP) Sergeant Tim Page pursued Daley southbound, lights and sirens on, speed quickly escalating. According to Windsor County State Attorney Robert Sand, Johnson radioed Page from farther along the interstate, asking if he should set out a strip of tire-flattening spikes. Page responded yes, telling Johnson to move quickly because they were headed his way, fast.

According to VSP Lieutenant Ray Keefe, who investigated the collision, the six-mile chase took about three minutes, involving speeds around 120 miles per hour. Keefe says instructions accompanying the spiked barrier mechanism recommend deploying the device only when the approaching targeted vehicle is visible. “Video from the manufacturer shows officers standing off the side of the road, throwing the device in front of an approaching car,” says Keefe. “Our first set of spikes came with goggles in case stuff got kicked up from the tires – that’s how close they expected you to be.”
Johnson saw Daley’s car a quarter mile away. “That’s 1300 feet, which equals 7.38 seconds if the car is doing 120 miles per hour. When Mike saw that car, he tried to pull the stop device across the highway, but there was no time. Mike was doing what he was told to do; there was no failure on his part. And he was one hell of an athlete.” Johnson was Oxbow High School’s former varsity star.

Johnson abandoned the device and sought cover. Two other vehicles driving ahead of Daley hit the spikes first and started swerving.

“Mike’s vehicle was in the median. The driver [Daley] saw the cruiser and saw Mike right about when traffic started to weave,” Keefe explains. The fatal collision was witnessed by passengers in the vans that hit the spikes ahead of Daley: New Hampshire schoolchildren returning from a field trip in Vermont. According to reported statements Sand made in court, Daley was trying to avoid the vans when he lost control, caromed into the median and struck Johnson broadside, throwing him into the northbound lanes of the divided highway.

The chase was diverted as police rushed to administer aid to the fallen trooper, who died a short time later at Dartmouth-Hitchcock Medical Center in Hanover. Daley escaped on foot, but was apprehended several days later in Pennsylvania.

A year later, Daley pled guilty to Vermont charges of involuntary manslaughter, gross negligent operation of a motor vehicle with death resulting, leaving the scene of an accident where death resulted, attempting to elude a police officer, and several misdemeanor drug charges. He was sentenced to 28 to 33 years.

Vermont Commissioner of Public Safety Kerry Sleeper holds Daley fully responsible for Johnson’s death. “He killed him as surely as if he fired a bullet from a gun,” Sleeper said. “Daley was the single reason Johnson died that day.” Johnson’s widow, Kerri, agrees, holding Daley – a repeat drug offender who put others, including the two vanloads of schoolchildren, at mortal risk to avoid the legal consequences of his criminal actions – solely responsible for her husband’s death.

Nevertheless, Lieutenant Keefe found himself promptly tasked with reviewing VSP pursuit policies.

Fresh Pursuits

“It had been ten years since there was a policy review on pursuits. I looked at all the New England states as well as California, New York. Most states had guidelines similar to ours. Three years ago, our pursuit policy was adequate,” Keefe says, “although the spike policy was not really policy. There weren’t good guidelines on use, and no training program other than what came from the manufacturer.”

Three other police officers around the country were killed in a short time frame from Johnson’s death, deploying the same devices. VSP tire-deflating device policy now recommends stronger cover than a parked cruiser, like a bridge abutment or guardrail. Keefe also made technical alterations to the device deployment mechanism: “We bought a longer rope.”

While Johnson’s death was the first such incident in Vermont, police-chase death scenes had become all-too-familiar in more populous states. Despite the existence of 24-hour cable channels in Los Angeles dedicated to the spectator sport of freeway chases, “the public doesn’t like the pursuits,” Keefe says. “One out of four people injured or killed in police pursuits are non-involved – that is, bystanders.”

Law enforcement training experts have also tempered their views on chases. “Police pursuits are one of the most dangerous acts a law enforcement officer performs. Not only is the danger high for the officer and suspect, citizens are also at great risk,” writes Travis Yates, Captain and Team Leader with the Tulsa, Oklahoma Police Law Enforcement Training Unit and nationally recognized expert in the use of tire deflation devices, in his police vehicle advice column at PoliceOne.com. Yates recommends tire deflation devices because, when used correctly, they diminish both the speed and duration of the chase. Incorrect use, he warns, can lead to the death of police officers.

According to Pursuit Watch, a nonprofit citizens group, statistics reported by police to federal highway safety officials indicate approximately 40 percent of all pursuits result in a crash, 20 percent in injury, and 1 percent in death. National Highway Safety Administration data documents 35,000 pursuits per year, with 14,000 crashes, 7,000 injuries (4,000 of these to innocent bystanders), and 350 deaths resulting – about one a day. Car chase-related deaths and injuries of police officers far outnumber those from armed confrontations. In police work, the car is deadlier than the sword.

Yet these statistics are incomplete. Many fatalities, especially of bystanders, are simply reported as related to a collision, and not associated with a pursuit. Pursuit Watch’s news monitoring indicates that the real numbers are about two to three times higher. A 1996 National Institute of Justice study by Geoffrey Alpert of the University of South Carolina lends credence to the Pursuit Watch estimate. His research concludes that 38 percent of departments do not collect or maintain information on pursuits. A better estimate would be at least 70,000 police pursuits a year, terminating in 28,000 crashes, 14,000 injuries, and 700 or more deaths, at least one-quarter of which were people wholly uninvolved in the chase. The vast majority of pursuits are started over traffic infractions, misdemeanors, and property crimes.

Alpert’s study also echoed the need for agencies like VSP to review and revise their pursuit policies. Most departments (91 percent) had written policies governing pursuits, but many departments’ policies were more than 25 years old. Sixty percent of agencies provide entry-level driver training to recruits but little or no training on decision-making, such as when to pursue.

A Change of Pace

Decision-making has become the focal point of VSP pursuit policy revisions. Now training Vermont troopers ‘in little pods’ every year, Lieutenant Keefe says, “I try to instill that you need to be in the decision-making process. You’re in the driver’s seat. On the flip side, it’s your duty and job to pursue criminals, if there was an offense committed.”

The new policy attempts to address what Keefe calls “Blue Light Fever,” the “I’m gonna getcha” mental state that can take over a law enforcement officer in hot pursuits. Officers now have a number of ‘outs’ which allow them to discontinue pursuit at any time based on judgment of the risks and dangers. The policy recognizes the ‘tremendous burden in making decisions regarding high speed pursuits... [D]espite the urgency...it is each member’s responsibility to weigh the dangers to innocent parties and themselves, and...drive with due regard for the safety of others.” Troopers are authorized to discontinue pursuit “at any time if the member believes safety factors outweigh the need to immediately apprehend the fleeing violator.”

The new policy also inserts supervisory control and ensures monitoring of the chase by uninvolved personnel. “It used to read that they needed to consult a supervisor unless supervision was not available,” Keefe says. “Now, there must be another person involved. If no supervisor is available, then the trooper has to get some other officer of higher rank on the radio. When I hear a pursuit on the radio anywhere in the state, I jump in from here [the Bethel Barracks]. Get someone involved who’s calmer, detached.” Supervisors can also call off a pursuit based on factors including the nature of the offense committed, traffic and weather conditions, the relative skills of the pursuing trooper, and whether others are being put at risk.

Supervision does not stop when the cars roll to a halt. VSP requires in-cruiser cameras videotape all police pursuits. Tapes are then sent along with a High Speed Pursuit Form to Lieutenant Keefe. His hand-picked Pursuit Committee meets every three months to review the submissions, then reports back to supervisors and involved officers. The five members of the Pursuit Committee have a combined 80 years of police experience, hold at least the rank of Sergeant, and meet Keefe’s high standards for respect and credibility.
“We started about three months after Mike’s death,” Keefe says. “There were issues then with what we were seeing. Now, the difference is staggering. The officers are talking about the policies during pursuit. We’re seeing officers breaking off the pursuits, using their judgment.”

The committee reviews about 75 to 100 events each year. “For the last three months, we saw twenty pursuits. We gave positive reviews on nineteen, and negative on only two, one just a speed issue, the other a tactical issue.” This contrasts markedly to the first reviews in 2003, when the majority got bad marks. “It’s gotten better every time. I’m hearing good things about it.”

Those good things include the fact that no police officers or non-involved persons have been injured in VSP pursuits since the change in policy. However, fleeing drivers have still been hurt or killed in chase-terminating collisions.

Keefe believes the new procedures strike the proper balance between risk and the agency’s mission. “We could have stopped pursuits all together,” he says, “But in my opinion that’s dangerous. It’s my bet you’re not going to get people stopping for police if they know you won’t pursue.”

Pyrrhic Victory

Not all Vermont police agree that VSP policy properly weights the scales. “The State’s policy is based on balancing dangers,” says Tom Hanley, chief of the Middlebury Police Department. “But there are too many dangers. The cruisers may be old, or even if new they can be defective.” He somberly recounts the death of a fellow officer in Connecticut when the rear end of his new cruiser let go mid-chase; he requires new officers to listen to the dispatch tape of the incident to drive his point home. “There’s no control in a chase. You’re in tunnel vision, in survival mode. With the radio, sirens, car noise, your senses are overwhelmed. So it ends, most likely in a crash, and you’ve stopped your guy for speeding or whatever you were chasing after him for in the first place. But at what price? It’s a Pyrrhic victory.”

Middlebury pursuit policy “specifically equates police pursuit with use of deadly force,” Hanley says, noting that so far as he knows, his department is the only one in Vermont to take this tack. “The rule is that if you can use deadly force to effect a seizure of this person, then you can pursue him. If not, you don’t pursue him. We don’t shoot a burglar when he’s running away from a building and therefore we don’t engage in a high speed pursuit.”

Chief Hanley sees high-speed chases as antithetical to his community policing mission. “We have four components to our mission: One is to arrive at a situation safely, two is to begin to contain that situation, three is to gain control of the situation, and four is to de-escalate it. Nowhere in our policy does it say that we are going to escalate a situation, and nowhere does it say that we are going to be drawn into a situation that we cannot control, and a pursuit simply is an uncontrollable situation, I don’t care how you look at it. You’re the tail on the dog, you’re being dragged around by another car.”

This isn’t to say Middlebury police don’t use blue lights, traffic stops and other police business. But the department’s directive is that, “once it reaches a threshold where a person is clearly attempting to elude you, then you must discontinue the pursuit, period, unless you’re in a deadly force situation.”

Hanley rejects the maxim “they ran, therefore I chased,” a view supported by a growing body of police science. Yates cites research showing that, “in the vast majority of situations, a suspect eluding law enforcement officers will either drive within the traffic flow or abandon their vehicle once the police are no longer chasing them.” And Alpert’s National Institute of Justice Study found that adopting a “violent-felony only” pursuit policy reduced pursuits from 279 in 1992 to 51 in 1993 in the Metro-Dade (Miami) Police Department, while pursuits in Omaha increased from 17 in 1993 to 122 in 1994 following adoption of a more liberal policy by police there.

The International Association of Chiefs of Police 1990 position paper outlines three general types of pursuit policies: Discretionary, Restrictive, and Discouraging. The IACP adopted the middle-of-the-road, recommending ‘placing officers under a series of carefully defined constraints and subjecting pursuits to close supervision and review.’ In the wake of Johnson’s 2003 death, VSP moved from their prior Discretionary policy which left high-speed chase decisions in the hands of the trooper behind the wheel, to the Restrictive middle ground – a move which puts Vermont ahead of many other states which lag in the dangerous ground of outdated practices.

But public concern over police pursuits around the nation continues to grow, and it remains to be seen whether more police departments will discourage high-speed chases in all but the most urgent situations – as in Middlebury and Metro-Dade – or whether Vermonters will bear witness to another tragic police pursuit collision, like Pyrrhus of Epirus surveying the remains of his eviscerated troops at Asculum, securing victory at too great a price.

Cindy Ellen Hill is the author of Creative Lawyering: A Handbook for Practice in the Twenty First Century  (www.XLibris.com/creativelawyering).