We have previously written (here and here and here and here) about unnecessary fatalities produced by high-speed chases by police officers — an on-going controversy over the justification for such chases. The latest such controversy occurred in California where Deputy John Swearengin drove through an intersection without his lights on and hit and killed Daniel Hiler, 24, and Chrystal Clevenger, 30. They were pushing a small motorbike across the interaction when hit by Swearengin. He was responding to a call about a stolen vehicle. The police ended up arresting relatives of the deceased who were outraged by the accident.
Family members spend the weekend washing cars to raise money for in Oildale, California for Hiler’s fiancée and two children.
What is interesting is that Sheriff Donny Youngblood said Swearengin “was responding to a report of a stolen vehicle with a suspect still at the scene” when he struck his victims. That would indicate that the suspect was already in custody or at least this was not a chase situation — increasing concerns over the negligence of the officer in the circumstance. One countervailing fact alleged is that the two victims were outside of the crosswalk. That alone, however, does not necessarily bar recovery. Even in a contributory negligence jurisdiction where one percent of negligence by the plaintiff can bar recovery, there are claims of “last clear chance” for inattentive or helpless individuals. Most states, like California, are comparative negligence jurisdictions. In pure comparative states, the negligence of the victims are simply applied against the award to reduce liability. In a modified comparative state, the plaintiffs must be less than 50 percent at fault to recover. California is a pure comparative negligence state.
The police ultimately arrested four relatives of the victims after the police say they got into an “altercation” with California Highway Patrol officers at the scene.
The matter is under criminal investigation, but there would appear grounds for possible civil litigation. A wrongful death action does not have to be filed for at least a year and it is sometime good to see how the criminal investigation will come out. The lack of lights may be key as well as the speed. Witnesses have already claimed that there were no lights and forensics should confirm the likely speed as well as the possible dash cam information.
Investigations have shown police officers in other jurisdictions routinely running red lights.
I do not know the circumstances of the arrest of the relatives, though considerable slack should be given to grieving family members. However, the circumstances of the two fatalities merit both criminal and civil scrutiny.
Source: KGET as first seen on Reddit.
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This is what they (cops) do. I am not shocked by this. Cops are human and will do anything to cover their own ass just like anyone else.
Seems like a state action exists under a 1983 Action….
Yeah, I’ll have to agree. I smell a civil suit and one that the state really really doesn’t want to go before a jury. Outrageous.
I don’t know…. States know how to turn the table and make everyone but themselves look guilty.
Gene,
Yep….and I wonder if the intersection cameras data comes up missing or the officers dash or personal recorder information….
Sounds to me as if the Sheriff is digging a deeper legal hole for the Department. A hole lined with money for somebody.
Oh, some of that WILL happen
YEs, followed by whining about outrageous court settlements. Everything will be just peachy if we could only limit damages
Frankly, I like that sarcasm. It looks good on you.
in the real world, few people are candidates for canonization. OTOH, I’m guessing the cops did whatever they could to coerce some pretext for arrest a,omh the family members.
Frankly,
All peachy when you can calculate the damages beforehand….I am sure the insurance companies would then know how much to charge the municipality before hiring a mental person as a cop…….But they do have to work as well…give em some steroids to workout with…
Here is the latest from California. The Los Angeles City Attorney’s Office is offering Occupy L.A. protesters arrested in recent weeks the opportunity to pay $355 for private instructional classes on free speech which will allow them to avoid their court dates.
http://www.latimes.com/news/local/la-me-occupy-schooling-20111222,0,4087465.story
Sometimes the jokes write themselves.
In a section 1983 suit for civil rights violations the plaintiff has to allege that the defendant cop was “acting under color of state law”. The Sheriff will likely defend on the grounds that the emergency lights were not on and hence not under color of law. This cop was just like any other driver in a hurry to get donuts.
But humor aside, the family members arrested should consider filing a section 1983 action for injunctive relief to prevent the police from taking this persecution further. Section 1983 liability can run to a municipality in all states and against Counties where the Sheriff is the culprit in many states, depending how the county government system is formulated. States have sovereign immunity and in some states a county is a subdivision of the state.
The county has a deeper pocket than Sheriff Podunk here.
North Carolina recently prosecuted a deputy sheriff for rear ending another car at a high rate of speed with no emergency lights on. If this guy is not prosecuted then the residents of that county need to replace their prosecutor. They know that they must replace their sheriff and should move on that post haste. And do not let him become the dog catcher–get him out of office completely.
Gene as much as I wear it it should look good on me!
Even in my somewhat “classic” jurisdiction which clings to the antiquated notion of contributory negligence, I think this officer would be guilty of gross negligence which would not operate as a bar to the alleged simple negligence of the decedents.
The Keystone cops are risible.
OS,
You are right about the jokes writing themselves. Pay money to go to a class on Free Speech???? WTF
I agree with most here that this officer is in serious trouble. A civil suit is likely and as Gene suggested the likely outcome for the state is not good.
According to law, an emergency vehicle consists of emergency lights and siren, both have to be on responding to a call, if not, then it’s not an emergency vehicle, the cop is wrong and so is the police dept, and the city, i see a bug time law suit coming.
I almost got nailed by a squad car this summer.
I was headed through an intersection and never saw him until he blew through his red light, with no lights/siren, nearly clipping the front of my truck, I had to slam on the brakes which almost got me rear-ended.
I happen to be aquainted with the police chief and mentioned it the next time I saw him and his response was “He must have been on his way to a crime or accident scene” which led me to ask about the lack of lights/siren and I was told that “they don’t always use the lights/sirens if they are trying to catch a suspect so that they don’t tip off the suspect”.
The Chief is an upstanding guy, a great police officer…if he thinks so little of his cops blowing through intersections sans warning, then what do no so upstanding police think about it?
The officer did not follow procedure, of having the emergency lights on and the siren,when responding to a call and it caused 2 deaths, the investigation needs to know why and if he was really going to a call, I see manslaughter charges here, after all it was an accident.
It doesn’t matter that the pedestrians were not in a crosswalk. Under California law, pedestrians ALWAYS have the right of way. It is NEVER legal to run over a pedestrian in California.
At worst, they can get post humous tickets for jaywalking, which their relatives could pay out of the wrongful death settlement.
Okay, that last part is a joke. But pedestrians having the right of way is absolutely true.
The headline is wrong. It should read county Deputy Sheriff Allegedly Speeds Through Intersection Without Lights, not California Highway Officer.
The police officer who caused this accident, Swearengin, is a Kern County Deputy Sheriff. Traffic accident’s that happen in this county are handled by the California Highway Petrol, not the Sheriff’s department.
The Sheriff’s headquarters, where the county Sheriff’s cars start and end their day, was only 4650 feet farther down the road in the direction the Deputy’s travel.
The relatives were being arrested by the Kern County Deputy Sheriff’s when I was watching the story on the local news.
There will be no criminal charges against this officer, even though he was speeding and was driving without headlights on, never mind a siren or emergency lights. The CHP investigation will see to that.
If the family pursues a civil case against the officers I expect the State will pursue criminal charges against the family. It’s not unlikely that family members could face further intimidation by elements within this law enforcement agency if they even attempt to keep this story in the press.
Note also that this officer did not exit his car to check on the victims until other officers arrived on the scene.
We Killed Your Daughter; You’re Under Arrest
puzzling,
Your first paragraph is supposition. Officers do get charged and can be convicted of criminally negligent homicide – the likely charge in this case. Here are two examples:
http://www.nytimes.com/2005/10/22/nyregion/22cop.html
http://www.chron.com/opinion/editorials/article/Justice-served-Verdict-shows-police-not-immune-1651707.php
The second paragraph is extremely unlikely. If the family’s counsel is competent, if he/she can in any way portray the prosecution as retaliatory, they could bring charges against the prosecutors for abuse of power under color of authority and malicious prosecution. No DA is going to risk their career to protect a cop.
Your third paragraph is a sad statement, but as a matter of insurance, officers are probably told to stay in the car until other investigating officers arrive at the scene.
Gene,
Both examples you cited are 7 years old. Considering how frequently we see these incidents the very fact that you have to dig that far back to find an example of a similar prosecution is pretty telling.
Was a drug or alcohol test even administered to the officer? Is surveillance video from area businesses available? Was the dashcam video on?
Everyone knows what’s going to happen to this officer: nothing.
If this had happened in Florida – where there are ongoing, armed disputes between local and state police – I might expect some chance of a different outcome.
Please. There is more personal and career risk if the DA prosecutes the cop than if not.
Gene,
I found one that went to trial:
Jury acquits former Memphis officer of vehicular homicide, deadlocked on other charges
And an actual conviction… for reckless driving:
Former Fort Lauderdale cop charged with vehicular homicide found guilty of lesser crime
Among evidence not permitted at trial:
puzzling,
None of that changes what you’ve said is supposition. I’m sure I could find more current cases if I was that interested, but I’m not.
In your first case: “The Criminal Court jury, however, could not reach a verdict on the lesser-included offense of reckless homicide or on reckless aggravated assault charges against Mark Weatherly. Prosecutors Glen Baity and Doug Carricker will tell Judge Lee Coffee next month whether they will retry Weatherly on those charges.” He’s not off the hook yet and vehicular homicide was the maximum charge the DA could pursue. DA’s pursue charges above what the standards of proof for a case might meet all the time, but that’s why lesser and included charges are included as they are here. After reading the facts, reckless homicide seems more likely to stick.
As to your reckless driving case? It’s illegal to walk on an interstate highway because it’s inherently dangerous – that’s mitigation.
The current case was not on the interstate, but rather in an area where the officer had a higher duty of care for pedestrians – an intersection. Will he get charged with vehicular homicide? Maybe. But if he’s convicted, based on the facts, it will likely be for criminally negligent homicide. He had no intent.
Also, if you don’t think a DA won’t burn a cop before himself? You don’t understand the food chain.
That being said? Do the cops get away with crap they shouldn’t? Yes they do and it pisses me off, however, when a civilian dies it is much harder for them to get away scot-free. Too much bad PR. And even if they win a criminal case, that’s not a guarantee a civil case will fail. As a tactical matter, if you’re facing a big payout on a potential civil suit, it would be better to burn the cop and offer to settle on a pending civil suit. If the cop is punished, the plaintiffs are going to be more likely to take a lesser settlement as a matter of psychology.
Gene,
I’ve accurately predicted police misconduct before, right here on the blog. Call it supposition if you want.
I will. Thanks.
Thank you for your bold report and calling attention to the fading civil rights of victims of law enforcement misconduct. I agree that this would be a classic Section 1983 Civil Rights case, as John Swearengin was clearly acting under color of state law. Unfortunately, the judicial system in California abuses qualified immunity for police officers and the case, if filed, would faces an uphill battle. The most strident lobby in this state is the sheriff and police officer associations and the judges need them for re-election. Consequently, rarely will you see a law enforcement officer held accountable for their actions.
The doctrine of qualified immunity shields public officials from liability unless their actions “violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.” Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S.Ct. 2806, 2814, 86 L.Ed.2d 411 (1985).
The “central purpose of affording public officials qualified immunity from suit is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.” Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 1022, 127 L.Ed.2d 344 (1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982)).
Lewis v. Sacramento County is a great Ninth Circuit case I’ve learned from in developing my own Section 1983 Case, currently in the US Court of Appeal. The Lewis case can be found here: http://caselaw.findlaw.com/us-9th-circuit/1182657.html
Anyway, thanks again for your report and keep up your valuable public service. Just wondering, was Swearengin given a field sobriety test?
Erin Baldwin
Evidently, only ambulances/rescue squads slow down crossing an intersection against the light. I saw one get his picture taken this evening in front of the Cleveland Clinic, on the way to a call. He slowed for the next two red intersections, too.
“Here is the latest from California. The Los Angeles City Attorney’s Office is offering Occupy L.A. protesters arrested in recent weeks the opportunity to pay $355 for private instructional classes on free speech which will allow them to avoid their court dates.”
They should all refuse and insist on a court date.
while flipping through the channels earlier i started watching a show called “police women of memphis”. the officer while responding to a minor non- injury traffic accident, lights and siren, twice took both hands off the steering wheel gesturing for the camera. one of those times she was going through an intersection. at the scene she allowed a driver that admittedly had no license or insurance and poor eyesight, to drive a damaged auto off the road.
Here’s another example of what we might expect from prosecutors faced with crimes by law enforcement agent.
From Tampa:
Another example of an officer responding to a call without headlights, lights or sirens, killing a citizen:
City: Police cruiser in fatal Venice crash traveled at safe speed
In fact it was later determined that the cop was traveling at 78 MPH.
There is an update in this case:
Surveillance video moments before the crash:
this is Daniels mother ………speechless !!!!! shame on your neglegent driver ….you took my baby forever !!!!!!!
There is an update in this case:
There is another update in this case:
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