Police High-Speed Pursuits: Giving Police the Authority to Intervene Before the Public is Harmed

Police Pursuits. The idea brings to mind thoughts of bank robbers fleeing from the police after committing a daring heist, only to be pursued by inept cops that wind up crashing into each other as the robbers drive away in perfect Hollywood fashion. However, police pursuits are rarely as glamorous and thrilling. In reality, they are terrifying and dangerous. In fact, according to the National Highway Traffic Safety Administration (NHTSA) more than 5,000 bystanders or passengers have been killed in police pursuits since 1979

In recent years there has been a call for police departments to limit their pursuit of fleeing suspects. A simple google search reveals the continuous calls for police to stop pursuing suspects unless they are considered dangerous or committed known violent felonies. For instance, in Jackson, Mississippi, Councilman Kenneth Stokes, in reference to police pursuits coming into his ward, went as far to suggest to the local population “[l]et’s get rocks, let’s get bricks and let’s get bottles and start throwing them and then [police] won’t come in here anymore.” Similarly, in Washington D.C., Charlie Viverette’s mother claimed police should not have been chasing the suspect that hit her son, killing him. Like Charlie Viverette’s mother, many wish to place the blame for such injuries at the feet of the police rather than the fleeing suspect. In those cases, where the police due pursue a suspect and the pursuit ends with the suspect injured or killed, the police not only face criticism from the public, but the department and the individual officers involved become the subject of a civil rights lawsuit.


In attempting to terminate a police pursuit there are a variety of tactics an officer may use. Officers may attempt to “box” a vehicle in by placing cruisers around the suspect’s vehicle and gradually slowing their own speed, forcing the driver to stop. Other methods include using spike stops or the most notable precision immobilization technique, also known as the “PIT maneuver.” During a PIT maneuver, the pursuing officer uses their front push bumper to strike a fleeing vehicles rear quarter panel/bumper of the vehicle, causing the vehicle to spin and end the pursuit. While these are the most common methods, they are not the only methods to end a pursuit.  Each of these methods can involve a high degree of danger for the pursuing officers, the public and the fleeing suspect, as evident by this video, where a fleeing suspect crashes into a police cruiser while trying to avoid spike strips.


The Supreme Court has addressed the issue of use of force in the context of police pursuits only four times. Two of their decisions dealt with vehicles attempting to flee a scene while officers were nearby. The other two, discussed below, addressed the police use of force during the actual high speed pursuit. In each case, the Supreme Court found that either the officer involved did not violate the Fourth Amendment or was entitled to qualified immunity under 42 U.S.C section 1983.

The Supreme Court in 2007 first addressed the Fourth Amendment and use of force during a police vehicle pursuit. In Scott v. Harris, an officer was found to not have violated the Fourth Amendment when the officer rammed a fleeing suspect off the road. Harris was rendered a quadriplegic after leading the police on a six-minute chase that ended when Scott used the push bumper of his cruiser to ram Harris’ vehicle, causing it to veer off into a ditch. The Court held that Scott did not violate the Fourth Amendment because Harris was an actual and imminent threat to the lives of any pedestrians who might have been present, other civilian motorists and the officers involved in the chase.

Harris argued that police should have ceased the pursuit instead of ramming his vehicle, and by ceasing the pursuit the public would have been equally protected. The Court refused to adopt a rule that would give incentives for suspects to escape simply by speeding, running red lights, and endangering the public. Rather, the Court adopted the more sensible rule that “police officer’s attempt to terminate a dangerous high speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

The Supreme Court’s second decision involving police pursuits came just last year in November 2015, with the case of Mullenix v. Luna. On March 23, 2010, Israel Leija Jr., lead police on high speed pursuit. During the 18-minute chase, Leija and the pursuing officers reached speeds between 85 and 110 miles per hour. Leija phoned the local police dispatcher while fleeing and told them he had a gun and threatened to shoot at the police if they did not abandon their pursuit. The dispatcher promptly relayed this information to all the officers involved.

While other officers pursued Leija, Trooper Mullenix drove to an overpass intending to set up a spike strip.  Directly below the overpass another officer waited with a spike strip already deployed. Mullenix decided to consider a different tactic, shooting at the vehicle to disable it however, Mullenix was not trained in such a procedure. As Leija’s vehicle approached the overpass, Mullenix fired six shots, striking Leija four times in the upper body. Leija’s vehicle continued under the overpass, struck the spike strips, hit a median, and rolled. Leija was killed in the incident.

Relying on its precedent, the Supreme Court reversed the lower courts finding that Mullenix did not have qualified immunity. Instead, the Supreme Court held that Mullenix was entitled to qualified immunity because his actions did not violate clearly established precedent beyond debate.



While some continue to call for the police to stop pursuing only the most egregious or dangerous felonies in the name of public safety, perhaps it is more appropriate for departments to authorize officers to end high speed pursuits in an expedited manner. A fleeing suspect in a motor vehicle becomes a high speed missile aimed at the nearest unlucky innocent bystander who’s done nothing more than be in the wrong place at the wrong time. In contrast, it is the suspect who has made the decision to flee in a motor vehicle, placing the public in danger. Perhaps this is why the Supreme Court has never found an officer’s actions in a high-speed pursuit to be unreasonable. As Justice Scalia in Scott opined,

“we think it appropriate in this process to take into account…their relative culpability. It was [Harris], after all, who intentionally placed himself and the public in danger…”

By adopting a policy that reflects these case precedents, police officers will have the ability, with the constitutional authority, to end high-speed pursuits quickly before the public can be harmed. Rather than chase a suspect’s vehicle for 11-minutes or blame the police, perhaps it is time that society places the blame at the feet of the individual who made the conscious decision to endanger the public. By allowing the police to quickly intervene, this will reduce a suspect’s ability to crash into innocent motorist or pedestrians. In addition, those cases brought by suspects claiming a violation of the Fourth Amendment for a tactic during a high-speed pursuit that resulted in injury or death to the suspect, trial courts should evaluate each case beginning with a rebuttable presumption that a suspect who flees in a motor vehicle poses a danger to the public and officers. With this presumption, it is evident by Supreme Court precedent that when the police use tactics that include the use of deadly force to stop a high-speed pursuit, the actions by the officers do not violate the Fourth Amendment against unreasonable seizures. By adopting a policy that reflects this precedent, perhaps more innocent lives like Charlie Viverette, can be spared and the culpability of a high-speed pursuit can be placed where it rightfully belongs.


San Francisco Nudity Ban, A Balance of Interests

Nudity Ban

In California, public nudity is legal, so long as those participating are not engaged in lewd acts. Individual cities can choose to invoke bans on public nudity, which Berkeley, San Jose, and San Francisco have done. In November 2012, San Francisco lawmakers outlawed something that is not an issue in other parts of the country, public nudity. The debate over public nudity began in 2011 when San Francisco Supervisor Scott Wiener wrote an ordinance that requires nudists to put a towel between themselves and any public property they choose to sit on. This ordinance came as a response to an increased number of complaints regarding men whose exercise of their right to be naked was almost a daily occurrence in the Castro District.  The nudity ban, which went into effect in February 2013, placed a $100 fine on first-time offenders and possible jail time for those caught more than three times.

Was this ban necessary? This is a question that many have asked, especially advocates of public nudity. Prior to the ban, on any given day, a person who walked around Market and Castro streets would be sure to witness someone in the buff at a café table, on a park bench, or even pumping gas. The ban prohibits people from participating in everyday public activities in the nude, but it does leave exceptions where nudity is still acceptable. These events include the annual Gay Pride Parade and the Folsom Street Fair, which cater to certain sexual subcultures.

In March 2013, a request by nudist activists for a temporary restraining order blocking the ban on nudity in public places was turned down. U.S. District Judge Edward Chen denied the restraining order because the evidence presented lacked details and lacked a substantive legal argument. Chen explained that nudity is not inherently expressive, so it is not protected speech.

Every year since the ban was enacted, nudist advocates have gathered in Jane Warner Plaza at Castro and Market Street to protest the nudity ban on its anniversary. On Saturday, February 1, 2014, protesters were wearing censor cards, or socks to cover up their genitals in compliance with the ordinance. However, when protestors removed these items, leaving themselves fully exposed, police gave a five-minute warning that they needed to cover back up. When the protestors failed to comply with the request, police began arresting protestors who were violating the ordinance.

Similarly, on Sunday, February 1, 2015, a rally was held to protest the ban on its two-year anniversary. Organizers of the protest did not obtain a permit for this event and because of that, police officers arrested two men and women whom they warned were in violation of the ordinance.

Despite these instances of enforcement of the nudity ban, it has largely been ineffective to prevent public nudity. As a resident of the Castro neighborhood I can attest that even with the ban, I can walk down Castro Street on any given weekend and still see people walking around in their birthday suits.

Upon closer examination of the language of the ordinance, I found that SEC. 154(b) only states that a person may not expose his or her genitals or anal region. But the ban does not go so far as to require people to wear clothing while in public places, nor does it specify what can be used to cover the genital and anal regions, only indicating that these regions are not to be exposed. As a result of this vagueness, it is still very common to walk down the streets of the Castro neighborhood and see people who are for all intents and purposes naked, with the exception of a flap or a sock to cover their genitals.

Though the ban has not entirely stopped people from being “naked” in public, there are separate city laws that prohibit nudity in restaurants, public seating areas, and parks. It is unclear to me whether the ban was necessary because it appears to be a “naked” fail. However, nudist activists disagree, and argue that it is not the same as it was prior to the ban because the ban stifles their ability to engage in free expression, their “body freedom,” and using nudity as a political statement. Activists further argue that forcing people to cover up will damage San Francisco’s reputation as a “city without inhibitions.”

The ban was only approved by a 6-5 vote by the Board of Supervisors. Those who voted against the ban were concerned that civil liberties and free speech would be infringed as well as its potential to change San Francisco’s notoriously tolerant style as a city. However proponents of the ban disagreed, claiming that while the San Francisco and the Castro in particular are a place for freedom, expression, and acceptance, these concepts have limits and should not elicit an anything goes idea. Public spaces are made for everyone, thus, it is important to have minimum behavioral standards. However, the question remains whether this ban was necessary in the first place, especially since it has not entirely prevented the expression it was meant to.

What Do You Really Want? Speech v. Reputation in a World of Instant Gratification

The "Loaded Hash Browns" at Jacks N Joe.
The “Loaded Hash Browns” at Jacks N Joe.

“Where do you want to eat?”

That’s the question many food aficionados ask when they start making dining plans for the day. It’s also the question most regular people ask on a daily basis – it doesn’t matter if you’re in a relationship, celebrating with friends, or simply divulging in the numerous food spots your town has to offer.

Today’s social media provides us with an unprecedented platform for expression. Although you can definitely sue someone for defaming you, social media’s expansive platform has created an unintentional temptation for abuse – we can say what we want, how we want, about who and what we want, with very minimal worry for consequences.

Eating out at restaurants is extremely common, particularly in big cities and populations like the Bay Area. It is no longer seen as something reserved for a special occasion. Hipsters love to buck the trend, but right now, what’s “in” is what’s “out” – as in what food is “out” there, and how can I find it?

Buying groceries and cooking a meal at home isn’t cool anymore. It may be more expensive to maintain a “going-out-to-eat” diet, but it’s more in tune with the times. In particular, San Francisco is full of “techies” and young folks with disposable income. Other than the newest smartphone or fancy cocktails at “that bar everyone goes to,” these folks cannot wait to spend their money on all the newest and most popular foods that everyone in their inner-circle is talking about.

If you’re in the know, then you know that Yelp! is the number one way to find out where those best eats are. The website (and app) allow anyone to filter their search by the type of food, the price of food, and the desired area of dining within seconds.

Other social media outlets provide even more ways for foodies to share their love with the rest of the world: Instagram, Foursquare, Twitter, and Facebook provide windows into the kitchens of the finest food joints around. The sharing is fun, and it has created instant access for anyone with a smart phone and an affinity for “friends,” “@” signs, and “hashtags.”

But with all this sharing, there is a great deal of reliance being placed on strangers to tell us what is “good” and what is “bad.” I’ll admit – when I look to Yelp to find a good breakfast place (the morning after a jolly evening with my companions), I expect the app to be accurate. I want to find a place that sells Corned Beef Hash, within 5 blocks from Mission St., that’s open by 8:00am, for less than $5, and that accepts credit cards. I rely on Yelp, and the users who share on Yelp, to find that for me. And I do not expect them to fail me.

But what happens if I don’t get the information I’m looking for? Or if Yelp leads me astray? Or if a restaurant hasn’t conformed to a certain part of my search criteria?

For some people, the answer is not so pretty: they’ll post bad ratings on Yelp despite never actually eating the food. A picture on Instagram will be shared, but a caption will be included disparaging the establishment for not being open at 5:00am or not accepting credit cards. Some tweets imply incompetence due to one food item’s inadequacy. Some dedicate entire Twitter accounts to disparage the restaurant. And some tweets are somewhere in between being confused and upset.

Have we gotten to the point where that kind of criticism is warranted? Do we rely on these applications so much that we’ve come to expect them to be on point, all the time, no matter what? It should not come to the point where, when these searches fail us, we can destroy a restaurant’s reputation with unfettered discretion.

Our First Amendment rights of freedom of speech are strong, and we are all entitled to our opinions. But the state always has a counter-balancing interest in protecting one’s reputation. Businesses in the food industry rely on their clientele enjoying their experience and spreading the word to other potential customers. A line must be drawn between “angry foodie upset with the restaurant experience” and “unwarranted comments detrimental to the reputation of a restaurant.”

Defamation is when someone makes statements about another person, causing that person’s reputation to sink within the community. At common law, one could be liable for a defamatory statement concerning someone else if that statement was published to other people. “Publishing” included writing, radio, and spoken words – and the more permanent the message could be, the easier someone could sue and win a defamation suit.

In this day and age, commentary on social media has a serious and permanent impact on a restaurant’s reputation. This goes both ways: if commentary is good, customers come flocking in; if commentary is bad, customers have the presumption that the restaurant is never worth visiting.

When we consider going out to eat, there is a lot of value in getting a “heads-up” from others about the quality of a restaurant’s food and service. If the food, service, or overall experience is actually poor, a bad review is justified. And “truth” is always a defense to any claim of defamation.

But hateful comments, even in the context of food, can be an unlawful assault on a restaurant’s reputation. Most restaurants are focused on making a profit – they’re not focusing on whether they need to file a defamation lawsuit in response to spiteful social media attacks.

But all it takes is a few bad reviews for a restaurant to start going under (even if certain restaurants have recently challenged that premise).

So before you tell me where you want to eat, really think about what you want, and how you know you want it.

I know you’re hungry, but try not to get too cranky while we try to find the right place!

It’s Still Perilous to Catch a Lyft in San Francisco


In February, Golden Gate University Law Review member Cassie Heuckroth wrote about the questionable legality of “ridesharing” services like Lyft, Uber, and Sidecar.  Since then, there have been some changes.  Notably, the California Public Utility Commission stopped lawsuits against the companies and drew up regulations for such services.  This means that ridesharing services are on the up-and-up, but Joe Eskenazi points out in SF Weekly that they still have some thorny problems.  Eskenazi recounts a dispute between an UberX driver and his fare that resulted in the police being called.  If this had been a taxicab, there would have been a camera inside that recorded the incident.  But Uber cars are not required to have cameras, so the dispute remains unresolved.

The fact remains that, even though ridesharing services are now legal, they lack the same protections as other livery services: “Uber et al. have stripped the gears out of the archaic machine; it runs smoothly out of the device in the palm of your hand, a cutting-edge service for a cutting-edge city,” writes Eskenazi.  “And that’s all well and good.  Until something goes wrong.  And then you’re on your own.” There are no standard fares, no dispute-resolution systems (If you’ve ever been bored in a San Francisco taxi — and of course you have — you’ve read the little notice informing you that, in the event of a fare dispute, you can be taken to the nearest police station to settle it out.  But not with Uber.)

Also unchanged since February?  All the ridesharing companies continue to operate on the fiction that they have no responsibility for what their drivers do, on the theory that they’re merely providing a “platform” for “ridesharing” that exempts them from liability.  Observes Eskenazi, “Like a friend with benefits, it reaps all of the fun, while distancing itself from the difficult and complicated elements of life.”

And one thing that Eskenazi didn’t write about is still up in the air: insurance.  Ms. Heuckroth wrote, “When asked about insurance, both SideCar and Lyft tell their drivers that their cars do not need to be covered by commercial liability insurance.” But that may or may not be true.  Auto insurance companies are more than happy to deny coverage when a personal vehicle is being driven commercially, so it’s an open question whether Lyft’s claim of “excess” coverage means anything if the driver’s insurance won’t pay a dime.  This is where the “rideshare” metaphor breaks down: Lyft drivers aren’t already on their way to somewhere and cheerily accepting passengers on the way as a convenience.  No, Lyft drivers are summoned to all parts of town in order to make money.  They weren’t already on their way to Market and 2nd: you asked them to come there, and here they are.  Insurance companies, which are pretty shrewd, can see through this thin veil, meaning it will take several lawsuits before Lyft, Uber, and Sidecar abandon the transparent delusion that they’re not in the livery business and their drivers are ferrying people around town out of the goodness of their hearts.

Yes, the taxicab system is old and busted, especially in San Francisco, where the taxicab medallion system has sparked criticism.  But commercial ride-for-hire services like taxicabs are regulated for good reasons, and merely being legal isn’t good enough.  Rideshare services should still be subject to some of the same regulations that taxis are.

Sex Trafficking in Massage Parlors: Working Out the Knots in the San Francisco Health Code

Brothels masquerading as massage parlors flourish in San Francisco, which is a notorious hub for sex trafficking.  In the Sunset District alone, Supervisor Katy Tang’s office found at least thirty massage businesses, some of which blatantly offer “happy endings.”  The Tenderloin and parts of Chinatown are also teeming with spas that provide such alternative services.  Human traffickers hide behind these business fronts, selling sex.  The situation in San Francisco is so dire that laws on the local level must be retooled to advance regulation that stops human trafficking.

Behind the closed doors of these massage parlors, traffickers force their victims to live on-site to service men seven days a week.  Mostly women and girls, these victims often lack support systems and are ignorant of their legal rights.  Many are also undocumented and struggle with language barriers.  Traffickers thrive on these vulnerabilities, using force, fraud, or coercion to enslave sex workers.

District 4 Supervisor Katy Tang recognizes that the city’s ambiguous laws enable this exploitation.  On July 31, 2013, Tang proposed amendments to Article 29 of the San Francisco Health Code (“the Code”), which provides for the licensing and regulation of massage practitioners.  Pursuant to the Code, the city’s Department of Public Health (“the Department”) issues permits to allow massage establishments to operate.  It is also responsible for enforcing the Code, which purports to protect the health and safety of customers and employees.  However, the Code doesn’t provide these protections.

First, the Code avoids the “knotty” issue of sex by not specifying that it is prohibited.  While it does prohibit “illegal conduct,” it does not explicitly ban “sex” or activities that are sexual in nature.  Although “illegal conduct” includes prostitution, this phrase is inadequate to protect workers or patrons seeking massage services.  Explicitly prohibiting sexual conduct would make it clear that sex services shouldn’t be provided in massage parlors.

Tang’s proposed legislation would amend the code by unambiguously prohibiting sexual activity, as well as drug and alcohol use.  The amendment would result in a cleaner and safer establishment for patrons looking for a legitimate massage, furthering the purposes of the Code and taking a step toward ending human trafficking.

Another flaw in the current Code is the obscurity of its enforcement provisions.  The penalties for parlor owners who violate provisions of Article 29 include permit suspension, permit revocation, and fines.  Section 1928 provides a general outline of how these fines are to be assessed, but its over-simplification is a problem.  It doesn’t provide enough guidance regarding how to punish owners based on the severity of their violations.  Furthermore, parlor owners can overcome license revocation by re-applying in five years.  As long as an owner has the money to pay for penalties and re-application fees, he or she can skirt the rules by opening another sex parlor under a new name.

Tang’s proposed legislation addresses these problems by providing more detailed penalty guidelines.  For example, if an owner were to allow sex acts in his or her parlor, the owner would face an administrative fine of $1,000 and a 60-day permit suspension.  A repeat violation would result in permit revocation for the massage parlor and the masseuse.  More importantly, an owner convicted of a human trafficking charge would become ineligible to apply for a new massage establishment permit.

Another pragmatic change proposed by Tang is to require masseuses to carry their massage license identification cards at all times.  This practical fix would address the Department’s lack of resources to oversee enforcement of the Code’s provisions and would result in more efficient investigations.  Furthermore, this requirement would communicate to patrons that the establishment is a legitimate massage parlor and not for adult entertainment.

The Code’s provisions must be revised to reflect San Francisco’s stance on human trafficking, which is that these businesses cannot thrive on the backs of the sexually exploited.  The San Francisco Collaborative against Human Trafficking (“SFCAHT”) has expressed the city’s vision for a community that fully appreciates “the value of each human life and abhors any practice that denies a person her or his right to live a life free from violence, exploitation, or slavery.”  One of SFCAHT’s goals is to turn these values into reality by advocating for policy changes.  Supervisor Tang’s proposed amendment to Article 29 of the Health Code does precisely that.

The Hazards of Catching a Lyft: Ride-Sharing in San Francisco

Catching a cab in San Francisco has never been easier. Services like Lyft, SideCar, and Uber allow passengers to access drivers through an application on their smartphone, bypassing the need for going outside to hail a cab. But the convenience may come with a price.

All three services maintain that their “ride-sharing” services do not own the cars or employ the drivers, but merely connect drivers with passengers. Lyft’s co-founder, John Zimmer, expressed that his service is “not a charter-party carrier”, but instead a “peer-to-peer carrier.” (In fact, Lyft’s tagline is “Your friend with a car”). Sunil Paul, SideCar’s CEO, maintains that SideCar is “not a transportation company, it’s a communications platform.” Both services claim that the donations are entirely optional, and that their only involvement in the “ride-sharing” is connecting the driver to the passenger.

Apart from requesting “donations” from passengers instead of demanding payment and using the driver’s personal vehicle for transportation in lieu of a commercial taxicab, the services provided by these companies are virtually indistinguishable from traditional taxicab services. Opponents of these “ride-sharing” services charge that they are nothing more than illegal taxi companies.

The California Public Utilities Commission (“CPUC”) has recently charged that Lyft, SideCar, and Uber have all been operating illegally, and issued each of them $20,000 in citations. The violations cited were: operating as passenger carriers without evidence of public liability and property damage insurance coverage; engaging employee-drivers without evidence of workers’ compensation insurance; failing to enroll drivers in the Department of Motor Vehicles Employer Pull Notice Program; and failing to pre-employment test and enroll drivers in the Controlled Substance and Alcohol Testing Certification Program. All of these ride-sharing companies have been issued cease and desist orders, but Lyft has been the only company to settle; Lyft is excused from the fine, but has agreed to abide by a “set of new regulations.”

But the problems for these companies don’t end there. San Francisco taxi drivers have filed a class action suit against Uber. The suit alleges that the company is creating unfair business competition by violating city and state regulations.

Taxi drivers in San Francisco have to jump through numerous hoops. Notably, those seeking to become taxi drivers must have no prior convictions that would put public safety at risk, attend training at a taxi training school, attain a sensitivity training certificate and obtain a fingerprint and background check. Drivers for Lyft and SideCar are not subject to a background check.

Although drivers are not fingerprinted, they are subjected to important, probing questions such as “Where is your favorite place to hang out?” and “If you were to be a car, what kind of car would it be?” during interviews. If ex-convicts are driving for SideCar, at least the passengers can be assured that they are “cool” ex-convicts.

Trevor Johnson, a licensed cab driver, expresses concern about the safety of the general public with these “ride-sharing” services. Earlier this month, a Lyft driver hit a motorcyclist while there was a passenger in the car, prompting questions about whether insurance would cover persons struck by ride-sharing drivers.

Lyft’s terms of service advertise that Lyft “procures insurance that provides Drivers with excess automobile liability insurance up to $1,000,000 per occurrence.” This coverage, however, is “limited to liability only and does not provide coverage for collision.” Additionally, the terms of services expressly note that the provisions contained therein are “an unofficial summary.” SideCar’s terms of service note that no insurance is provided by SideCar. When asked about insurance, both SideCar and Lyft tell their drivers that their cars do not need to be covered by commercial liability insurance.

Questions arise as to the safety of others on the road. If SideCar doesn’t insure their drivers, will their personal insurance cover an accident when the car was being driven for a commercial purpose? In the interim, San Franciscans seem all too willing to sacrifice safety for convenience.