By Chris Jones
CLEAT Public Affairs
More and more, Texas law enforcement agencies are implementing “no chase” or “limited chase” policies. We have heard from numerous members who have expressed their fear and frustration regarding these policies. Many officers believe that these policies fly in the face of their mission to thwart crime and arrest offenders. It is hard to swallow that an offender can get a free pass simply by fleeing. Some officers have been told that if an traffic violator fails to stop once the officer turns on their emergency lights, then the officer is to “take the next right” and discontinue the effort to stop the violator.
CLEAT has been looking into this issue and we have serious questions about the legality and liability associated with “no chase” policies. Texas law seems to be clear. Specifically, every officer has a duty to arrest offenders “in every case authorized by [statute], interfere without warrant to prevent or suppress crime” and “arrest offenders without warrant in every case where the officer is authorized by law”. See Article 2.13 Texas Code of Criminal Procedure (CCP). Chapter 14, CCP, authorizes warrantless arrests in numerous circumstances, including offense committed within the presence or view of an officer. Evading arrest in a vehicle is a felony offense in and of itself. The plain language of these statutes suggests that peace officers have a statutory duty to arrest fleeing suspects, and it follows that wholly failing to give chase would be a dereliction of that duty. So can a department implement a policy that orders officers not to perform a duty required under Texas law? Are such policies unlawful?
And then there is the question of liability. If an officer fails to perform their duty to arrest because of a “no chase” policy then does that officer incur liability for the future actions of the person they allowed to flee? For example, if the violator had a kidnapped child in the vehicle and later the offender killed the child, would the officer who failed to chase and arrest the offender be liable for the actions of the offender? Officers are expected to act with objective reasonableness (See Graham v. Connor : 490 U.S. 386, SCOTUS 1989). Is it reasonable not to chase a violator under every circumstance or because of a “no chase” policy? We can understand that it may be reasonable to discontinue or limit a chase when the circumstances of the chase endanger officers or other persons. But is it reasonable to prohibit an officer to pursue in the first place?
All of these questions need to be answered and CLEAT has been working with Rep. Joe Moody, the chairman of the Criminal Jurisprudence Committee of the Texas House of Representatives to get answers. Committees of the Legislature are authorized by law to submit legal questions to the Texas Attorney General for an opinion. Rep. Moody has agreed to submit a request to Attorney General Ken Paxton on these issues. That request was filed on November 27, 2018.
The request is online at the link below: https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2018/pdf/RQ0255KP.pdf
“CLEAT is committed to being proactive on issues that affect our members. We will not sit idly by and allow departments to implement a policy that put our members in legal jeopardy, without asking questions or challenging the policy,” said CLEAT Executive Director Charley Wilkison. “And all of us at CLEAT want to extend our sincere thanks to Rep. Moody for his help.”
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Our first impression is that there are indeed 1st Amendment implications regarding this proposition. Under settled law, the 1st amendment right of association “encompasses … the right of [public employee] unions to engage in advocacy and to petition government on their [members’] behalf.”
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